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U.S. v. BYRD

No. 89-5601 Summary Calendar.

898 F.2d 450 (1990)

UNITED STATES of America, Plaintiff-Appellee, v. Rodney BYRD, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

April 4, 1990.

Attorney(s) appearing for the Case

C. David Evans, San Antonio, Tex., for defendant-appellant.

LeRoy M. Jahn, Asst. U.S. Atty., Mark J. Barrett, and Helen M. Eversberg, U.S. Attys., San Antonio, Tex., for defendant-appellee.

Before WILLIAMS, SMITH and DUHÉ, Circuit Judges.

PER CURIAM:

This appeal of a sentence imposed pursuant to the Sentencing Guidelines requires us to answer three questions:

1. May the sentencing court consider as "relevant conduct" conduct charged in dismissed counts of the indictment which the defendant denies committing?

2. Does use of such conduct to calculate the base offense level absent a conviction thereof violate due process?

3. If relevant, was the district court's inclusion of such...

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