UNITED STATES of America, Plaintiff-Appellee, v. Cheryl PUTRA, Defendant-Appellant

110 F.3d 705, 97 Cal. Daily Op. Serv. 2445, 97 Daily Journal DAR 4366, 1997 U.S. App. LEXIS 6092, 1997 WL 148688

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 1997
• Docket: 94-10040
• Status: Published

Opinions

PER CURIAM.

In United States v. Watts, — U.S.-, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam) (Watts), the United States Supreme Court reversed two decisions of this court, United States v. Watts, 67 F.3d 790 (9th Cir.1995), and United States v. Putra, 78 F.3d 1386 (9th Cir.1996) (Putra). In doing so, the Court twice cited the dissent to our decision in Putra and held “that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” Waifs, at-, 117 S.Ct. at 638. The Court then remanded Putra and Waffs to this court.

The relevant facts are outlined in Putra. A jury convicted Putra on Count 18, which charged her with aiding and abetting in the possession with intent to distribute one ounce of cocaine on May 8, 1992, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The jury acquitted Putra on Count 19, which charged her with aiding and abetting in the possession with intent to distribute five ounces of cocaine on May 9, 1992, also in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At sentencing, the district court found by a preponderance of the evidence that Putra was involved in both Counts 18 and 19. The court then aggregated the amount of cocaine from both counts to calculate the sentence level, and sentenced her to 27 months. The Putra majority cited United States v. Brady, 928 F.2d 844, 851 & n. 12 (9th Cir.1991), and held that “a district court may not rely upon facts that have been rejected by a jury’s not guilty verdict.” Putra, 78 F.3d at 1389. The majority then remanded the case to the district court for resen-tencing.

We now know that Brady was wrongly-decided, and thus we withdraw the majority published opinion in Putra. We adopt the reasoning of the Putra dissent. The district court did not clearly err in finding by a preponderance of the evidence that Putra was involved in both Counts 18 and 19. Although Putra was acquitted of Count 19, the district court properly considered the Count 19 conduct in determining Putra’s offense level. Thus, we affirm the district court’s sentence.

AFFIRMED.