                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-13032             JAN 30, 2012
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                              D.C. Docket No. 1:09-cr-20715-KMM-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

                                               versus

AVID PONCE,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (January 30, 2012)

Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.

PER CURIAM:
      Avid Ponce pleaded guilty to violating a condition of his supervised release

and was sentenced to 10 months imprisonment. In this appeal he argues that his

due process rights were violated because when fashioning his sentence the court

considered a portion of his criminal record that included a charge that was nolle

prossed and a charge that resulted in no action.

      A sentencing court may consider a defendant’s criminal record even when it

contains charges that did not result in a conviction. Williams v. New York, 337

U.S. 241, 69 S. Ct. 1079 (1949) (holding due process rights were not denied when

a sentencing court based its decision to impose a death penalty on information

about burglaries for which the defendant had not been convicted). This principle

was codified in 18 U.S.C. § 3661: “No limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.” Additionally, the

Sentencing Commission expressly incorporated § 3661 into the Sentencing

Guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 1B1.4 (citing 18

U.S.C. § 3661). Appellant’s argument has no merit.

      AFFIRMED.




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