                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-2441
                                     ___________

Donald R. Smith,                          *
                                          *
                    Appellant,            * Appeal from the United States
                                          * District Court for the Western
      v.                                  * District of Missouri.
                                          *
United States of America,                 *      [PUBLISHED]
                                          *
                    Appellee.             *
                                     ___________

                                Submitted: March 15, 2000

                                    Filed: March 22, 2000
                                     ___________

Before HANSEN, HEANEY, and FAGG, Circuit Judges.
                            ___________

PER CURIAM.

        Donald R. Smith pleaded guilty to conspiracy to manufacture methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) & 846. At sentencing, Smith objected to facts
in the presentence investigation report showing that a loaded handgun was found under
the seat of the pickup Smith was driving when he was arrested. The court enhanced
Smith's sentence two levels relying on "the evidence which is in the record, particularly
the record of the [codefendant's] trial" to conclude that Smith "possess[ed] a weapon
within the meaning of the United States Sentencing Guidelines." Smith did not file a
direct appeal, but did challenge his conviction and sentence in a 28 U.S.C. § 2255
motion. The district court denied Smith's motion, but granted a certificate of
appealability on the narrow issue of whether the use of evidence presented at his
codefendant's trial to enhance Smith's sentence violated due process.

        On appeal, the United States argues that Smith's challenge is procedurally
defaulted, but because the merits of the issue are "easily resolvable against [Smith]
while the procedural bar issues are complicated," we choose to address the merits, see
Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.) (en banc), cert. denied, 120 S. Ct.
120 (1999), and we conclude that no due process violation occurred. Because the
sentencing process does not carry the same evidentiary protections guaranteed during
a criminal trial, see Williams v. New York, 337 U.S. 241, 246-47 (1949); United States
v. Wise, 976 F.2d 393, 401 (8th Cir. 1992); U.S. Sentencing Guidelines Manual §
6A1.3(a) & commentary (1997), relevant, reliable evidence from a codefendant's trial
presided over by the sentencing judge may be considered in sentencing Smith even
though Smith was not present, represented, or able to confront and cross-examine
witnesses at his codefendant's trial, see United States v. Fetlow, 21 F.3d 243, 250 (8th
Cir. 1994). Due process requires only that Smith have notice of the proposed weapon
enhancement, which he received in the presentence report, and an opportunity to rebut
or explain the evidence to be used against him, which he exercised when he objected
to the presentence report. See United States v. Beaulieu, 893 F.2d 1177, 1181 (10th
Cir. 1990); United States v. Villegas, 911 F.2d 623, 633 (11th Cir. 1990); United
States v. Notrangelo, 909 F.2d 363, 365-66 (9th Cir. 1990). Because Smith received
all the process that was due him, we affirm the district court's denial of Smith's § 2255
motion. We do not address Smith's other claims because our review is limited to the
issue certified for this appeal. See Harris v. Bowersox, 184 F.3d 744, 748 (8th Cir.
1999), cert. denied, 120 S. Ct. 840 (2000).




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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