NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BATTEY,* District Judge.
PER CURIAM.
William D. Halbert appeals from sentences imposed for his conviction of one count of unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) (1981), and one count of prescription forgery in violation of 21 U.S.C. § 841(a)(2) (1981).
He raises two arguments on appeal. First, that a sentence based on "relevant conduct" that arose from dismissed charges, under sentencing guidelines § 1B1.3(a)(2) is unconstitutional. See United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(2) (Nov. 1991). Second, Halbert argues that the Sentencing Commission exceeded its authority in promulgating the relevant conduct guidelines. He relies particularly on our panel opinion in United States v. Galloway, 943 F.2d 897 (8th Cir. 1991).
This Court en banc upheld the constitutionality of the relevant conduct guideline and rejected arguments that the Sentencing Commission exceeded its authority in promulgating § 1B1.3(a)(2). United States v. Galloway, 976 F.2d 414 (8th Cir. 1992) (en banc). Accordingly, both Halbert's arguments are rejected in view of our Galloway en banc decision. See Eighth Cir. R. 47B.
We affirm the sentences imposed upon Halbert.
The Honorable Richard H. Battey, United States District Judge for the District of South Dakota, sitting by designation