Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral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.united States of America, Plaintiff/appellant, v. Sammie White, Also Known As Punkin, Defendant/appellee, 991 F.2d 802 (8th Cir. 1993)

Appellant was convicted by a jury of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1) and of using or carrying three firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). The district court¹  sentenced the defendant to serve 70 months' imprisonment on the drug count to be followed by the mandatory 60 months' imprisonment on the firearms count for a total sentence of 130 months. The defendant appeals contending that the trial judge erred in admitting evidence during the trial of a prior arrest incident involving the defendant when he threw away a baggie containing .94 grams of crack cocaine and in considering that same crack cocaine as relevant conduct during the defendant's sentencing on the drug count of conviction.

The trial court committed no error. The prior incident was clearly admissible under Federal Rule of Evidence 404(b). The defendant's arguments concerning the scope of the relevant conduct guideline (U.S.S.G. § 1B1.3) and the standard of proof required at sentencing have all been resolved against the defendant by our recent en banc opinion in United States v. Galloway, 976 F.2d 414 (8th Cir. 1992), cert. denied, U.S. (Mar. 8, 1993).

Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.