United States v. Eric Bolden

68 F.3d 479 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. UNITED STATES of America, Appellee, v. Eric BOLDEN, Appellant. No. 95-1882. United States Court of Appeals, Eighth Circuit. Submitted: Aug. 31, 1995. Filed: Sept. 13, 1995. Before FAGG, LOKEN, and ARNOLD, Circuit Judges. PER CURIAM. — 1 — Eric Bolden appeals the ninety-six month sentence imposed after he pleaded guilty to possessing cocaine base with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). — 2 — Bolden first argues that the district court1 violated Bolden's due process rights by basing his Guidelines sentence on drug quantities involved in the dismissed counts of his indictment. However, "[i]t is settled in this circuit that conduct for which the defendant has neither been charged nor convicted can be considered by the sentencing court under the Sentencing Guidelines." United States v. Oppedahl, 998 F.2d 584, 586 (8th Cir.1993); see U.S.S.G. Sec. 1B1.3(a)(1); United States v. Nichols, 986 F.2d 1199, 1204 (8th Cir.1993); United States v. Galloway, 976 — 3 — F.2d 414, 425 (8th Cir.1992) (en banc) (rejecting constitutional challenge to use of uncharged criminal conduct in sentencing), cert. denied, 113 S. Ct. 1420 (1993). — 4 — Bolden also challenges the constitutionality of the 100-to-1 ratio between the quantities of crack cocaine and powder cocaine that trigger the various base offense levels in U.S.S.G. Sec. 2D1.1. He raises this issue for the first time on appeal. Even assuming it is properly before us, we have repeatedly rejected this constitutional challenge. See United States v. Clary, 34 F.3d 709, 713-14, (8th Cir.1994), cert. denied, 115 S. Ct. 1172 (1995); United States v. Maxwell, 25 F.3d 1389, 1396-97, 1401 (8th Cir.), cert. denied, 115 S. Ct. 610 (1994). — 5 — The judgment of the district court is affirmed. Footnotes [1] The HONORABLE HENRY WOODS, Senior United States District Judge for the Eastern District of Arkansas