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

one, might deciding get these a new different issues arise. whether Before erroneous. erroneous, Likewise, if had his must decide Al-Torki not fired law- orders are, they yer, lawyer prepared after dismissal had to his whether Al-Torki, prosecute, proceed reviewable. Where without different issues failure to sanction, failure to might as for arise. If Al-Torki moved time- was a had dismissal distinguishable stay pursuant agree- from ly is fashion for a to an prosecute, the case Geneva, properly the case was to in London cases where ment arbitrate or those conclusion, and might to a the unsuccessful Al-Torki’s fail- litigated case bе different. Had challenge the appeal appear his party then seeks on to ure to second trial resulted one, interlocutory granting trial. first order a new from exhaustion of his funds in the Cf. Am., Inc., condition, might F.2d Volkswagen from his case Roy v. heart (9th Cir.1990); 1174, amended, Al-Torki, way different. Had in a be al., Wright put adversary et Prac court A. Federal his and the to 15B Charles did (2d trial, requested § 3915.5 1992 & preparing and Procedure ed. burden tice distinguishable judgment is also him Supp.1995). against The case that the court so enter appealable denying order a final appealable judg- from one where that he could have by default. Brit wagering is followed “at the all on reversal arbitration ment cost Cf. order,” Banking Group, Co-Op 916 F.2d ton v. of the new trial 15B Charles A. (9th Cir.1990). al., Wright et Federal Practice Proce- 3915.5, might then his merit a dure case orders, interlocutory We held PACCAR, different outcome. Deas v. Cf. appealable judgment, after generally final Inc., Cir.1985); 775 F.2d 1502-03 appealable after dismissal for fail are not Prods., Borg-War- Polymer National Inc. v. prosecute, “whether failure to ure to Corp., ner 176-77 Cir. negli or is purposeful is a result of prosecute 1981). But possibilities none of those oc- Cvetkov, Ash v. 739 F.2d gence or mistake.” curred. have no occasion to decide (9th Cir.1984). involved a 497-98 Ash require they whether a different out- would prejudice, dismissal without but we presents simple come. This ease refusal to the dis suggest it mattered whether appear at time set for trial. Such a prejudice. missal was with or without appear willful failure to for trial forfeits a Eighth applied Ash rule Circuit has litigant’s right appeal interlocutory to orders Du prejudice. where the dismissal was judgment. prior to Bose, 893 F.2d at 171. We see no reason AFFIRMED. create an intercircuit conflict on issue. prosecute,

If for failure to the dismissal is prosecute purpose “whether failure mistake,” negligence ful or is a result of interlocutory appealed. ordеrs cannot be then good plaintiff no reason to allow There America, UNITED STATES of appellate in the after revive his ease Plaintiff-Appellee, it die trial If had letting court. he good prosecute, failure to excuse for the case, including appeala revive would Cheryl Defendant-Appellant. PUTRA, orders, bility interlocutory but he would No. 94-10040. excuse, good first have to ei establish appeal. ther Appeals, Court Circuit. Ninth consequences These dismissal are why among the reasons dismissal has been Argued and Submitted Feb. 1995. penalty characterized a “harsh to be March Decided 1996. imposed in extreme circumstances.” Henderson, If Al-Torki

had, substantially before the date set

trial, lawyer fired his and asked for time

1387 HUG, Judge: Circuit Cheryl Ann Putra was convicted of one aiding abetting count of and possession of one ounce of cocaine with intent to distrib appealed ute. She both her conviction ‍​‌​​‌​​‌​‌​‌​​​​‌​​‌​‌‌​​​‌​‌​‌​​‌‌‌​​‌​​​‌​​‌​‌‍and In unpublished sentence. memoran disposition, dum we affirmed her conviction along with the convictions of her codefend Putra, 94-10040, ants. United v. States No. (filed 1996). 1996 WL 95243 March This opinion appeal concerns her of her sentence. Putra contends that the district court im properly considered as “relevant conduct” separate cocaine involved count of jury acquitted which the juris her. We have diction under 28 U.S.C. and we re mand for resentencing.

I.

Count 18 of charged Putra’s indictment aiding abetting her with posses- and sion with intent to distribute one ounce of 8,May cocaine on charged 1992. Count 19 abetting her with with intent to distribute five ounces of cocaine on 9,1992. addition, charged she was conspiring Count 2 with knowingly and inten- tionally quantity to distribute a of cocaine in grams. trial, excess Following of 500 returned a verdict on Count it her on Count 19 and Count 2. However, sentencing, determined that evidence showed that Putra was involved in charged aiding both of the abetting aggregated transactions. The court amount of cocaine involved Counts level, desрite 19 to determine her offense jury acquittal on Count 19. Without guide- added cocaine from Count Putra’s Pafundi, Honolulu, Hawaii, Richard T. range months; line would have been 15-21 defendant-appellant. included, with the added cocaine was 27-33 months. The court sentenced her Stemler, Merkamp Pat De- States to 27 months. Justice, partment D.C., Washington,

plaintiff-appellee. II. appeal

The issue on is whether a judge can sentence a defendant for a crime of guilty. which the found her not We interpretation review a district court’s WALLACE, HUG, Judge, Before Chief Guidelines de novo. United FARRIS, Buenrostro-Torres, Judges. Circuit Cir.1994). conclude that “The defendants are in Counts ... failing apply 19 ... intent to [and] with erred Brady, States v. cocaine.” The court then set forth distribute decision United Cir.1991). possession. the elements jury generally instructed The court jury acquitted Putra of and abet- he abetting that: aiding and possession ting in the with intent to distrib- in a a defendant criminal guilt The of of involved in ute the five ounces proof without that may established case be By acquitting charge, this Count every con- personally did act the defendant jury necessarily found that she was not the stituting alleged. law rec- the offense in the of that cocaine. involved that, anything ordinarily, person a ognizes challenges court’s of the Putra the inclusion may himself also be accom- cаn do for improper as under additional cocaine the person through plished by that direction Sentencing interpreted by Guidelines as agent, by person as his or or another Brady. in decision with, under acting or the di- in concert Guideline of, person persons or in a another rection (“U.S.S.G.”) lB1.3(a)(2) § provides that the enterprise. joint effort or offense level shall be deter- defendant’s base So, person acting if is under the another mined, respect to with offenses of character if the defendant or the defen- direction of 3D1.2(d) require § for which U.S.S.G. would joins person performs and another dant grouping, on of all and the basis acts omis- crime, intent to commit a acts with the (1)(A) in sions described subdivision and responsi- holds defendant then the law the (1)(B) part that course same acts or conduct of such other ble for the as plan conduct or common scheme or just though the defendant had persons as (1)(A) offense of conviction. Subdivision in- engaged the acts or in such committed committed, “all and cludes acts omissions conduct. abetted, commanded, aided, counseled, in- however, Notice, that before defen- duced, willfully by procured, or caused criminally may responsible held dant be lB1.3(a)(l)(A). § Ap- defendant.” U.S.S.G. others, necessary for thе it is that acts plication note 3 further states under deliberately the accused associate himself (a)(2), proper course is to subsection partici- in with crime and some manner quantity include total of narcotics in- bring pate it with intent about the regardless fact volved that the defen- crime. multiple dant has not been convicted of the course, presence mere at the Of scene example, As an the application counts. note knowledge that a a crime and crime is provides where defendant is are being not sufficient to es- committed sales, multiple as of the same a defendant either or tablish that directed plan, course of conduct or common scheme you crime aided and abetted the unless quantity drugs then the total involved to beyond find doubt reasonable level, be used to determine the offense even participant defendant was a mere- if single defendant is convicted of a count ly knowing spectator. only charging one of the sales. U.S.S.G. words, you may In not find a other comment, (n. 3). 1B1.3, you beyond unless find every reasonable doubt element of the interpreted in these offense as defined instructions by application proper it note indicates person persons, some committed quantity drugs include the total involved in voluntarily participated that the defendant the same of conduct course scheme intent its commission with the to violate even the defendant is convicted of one the law. count, it does not deal with the situation The court went on instruct the on the where defendant was individual Regarding acquitted. offenses. counts other count involved and is against Putra, part: analogous read in in an instructions considered situation Brady, Vgeri, text United States 844 United States v. 51 F.3d 876 (9th Cir.1991). Brady, Cir.1995), Diaz-Rosas, and United States ‍​‌​​‌​​‌​‌​‌​​​​‌​​‌​‌‌​​​‌​‌​‌​​‌‌‌​​‌​​​‌​​‌​‌‍v. degree Cir.), the defendant of first murder and denied, 13 F.3d 1305 cert. murder, to commit it -, assault with intent U.S. S.Ct. 128 L.Ed.2d 473 convicted him of the lesser included (1994), cases in which the defendants were manslaughter. voluntary sentencing, At conspiracy count, convicted of the but ac the court reconsidered the defendant’s “state quitted of certain counts. Under departed upward of mind” and on that basis circumstances, such district court degree planning prepara- and on the hold a defendant drugs accountable for pos tion involved the offense. Id. at 850. We sessed or co-conspirators, distributed so reversed, concluding that the Guidelines do long as it was in furtherance to un during not allow “a court to reconsider facts dertaken criminal sentencing rejected by that have been foreseeable to the defendant. See U.S.S.G. jury’s guilty comment, not verdict.” Id. at 851. “Oth- (n. 2). § However, these erwise, any judge disagreed time a with the applicable cases are not to the facts at hand verdict, jury’s judge could ‘reconsider’ acquitted because Putra was conspira critical elements of the offense to avoid the cy charge any activity and of related to the restrictions of the push Guidelines and cocaine involved in Count 19. In such a punish- sentence to the maximum —in effect situation, the district court should not con ing the defendant for an offense for which he sider the narcоtics in of her code acquitted.” or she had been Id. at 851-52. setting fendants when Putra’s sentence. Likewise, presents this ease a situa The Government contends that this case allowing tion where an increase Putra’s squarely nonetheless fits within section 1B1.3 effectively punishing sentence would be application note and that Brady because for an acquit offense for which she has been section, did not involve this we are not con- jury’s finding ted. The that Putra did not by holding. strained agree. its do not We aid abet of the five jury’s The verdict on Count 19 under the 9, 1992, May ounces of cocaine on is an precludes application court’s instructions rejection explicit of her involvement that of section 1B1.3 to this case because the cannot, transaction. sentencing The court jury’s rejected verdict participation Putra’s jury’s facts, after the determination on those in the Count respects. 19 transaction in all again consider the facts and conclude that § requires 1B1.3 that Pu- Putra was indeed involved. someway tra involved in the proof standard of acquittal differs for an transaction to include the offense as “rele- sentencing, rejected specifically we have jury’s acquittal vant conduct.” The is a find- argument justification considering this as involved, ing that Putra was not underlying jury’s acquittal. facts In Bra commit, abet, did not aid or and was not dy, may rely we held that a district court not 9,1992 engaged transaction. upon rejected by facts that have been appli- This result is not inconsistent with jury’s not verdict. Id. at n. 851 & 12. cation note 3 to U.S.S.G. 1B1.3. The note case, In this the district court’s sentence can states that the defendant need not be con- be reached al multiple victed of offenses to be sentenced disregard lowed to verdict on Count aggregate based on the amount of narcotics 19 and finding. substitute its own factual however, guidance, involved. This is direct- clearly Brady. This is forbidden under uncharged еd to preponder- conduct where a note, however, Brady is a ance of the evidence demonstrates the de- judicial involvement; limitation on the facts the district fendant’s it does not address sentencing, beyond acquitted consider at conduct. To in- allow the court to imposed by limitation the Guidelines. crease Putra’s sentence based on Thus, application cir jury’s findings conduct would make the very cumstances of this ease pointless holding narrow. We fact and contradict our acknowledge by Brady. is itself limited the district court erred in Count common scheme as five ounces

including the lB1.3(a)(2). range. sentencing Putra’s conviction.” U.S.S.G. ‍​‌​​‌​​‌​‌​‌​​​​‌​​‌​‌‌​​​‌​‌​‌​​‌‌‌​​‌​​​‌​​‌​‌‍increase REMANDED for re- REVERSED Background ac- Application May transaction. in involvement (45 tity grams) of cocaine involved is to be words, Putra issue is whether is other used to determine the offense level even IB of the 1991 under section 1.3 accountable single is of a count defendant convicted Guidelines only charging one of the sales. pos- five of cocaine codefendants ounces May to on distribute sessed with intent explicitly Id. the Note does not properly I believe Because hypothetical state that defendant was determining in this amount Pu- considered charged acquitted with and two оther level, respectfully I dissent. tra’s base sales, it is reasonable to infer that the court jury acquitted Putra Merely because acquitted the dismissed or the defendant May drug related to the transac- charges Thus, reasonably on those counts. the Note preclude the district court from tion not does interpreted can be to that a mean involved in including the amount activity need be convicted of criminal determining her base of- that transaction activity a court to consider that in determin- however, majority, con- level. The fense ranges. ing sentencing United States Bo- 1B1.3 not deal with that section “does cludes (D.C.Cir.1992) (Bo- nеy, 977 F.2d the defendant where was situation ney). count charged [an]other with involved point Background More to the is the Note acquitted count].” Id. at 1388. [on The 1B1.3, explains to section which that in deter- further majority states section 1B1.3 mining what constitutes relevant conduct un- Id. address conduct.” “does not (a)(2), der subsection courts should consider sweeping language 1389. Such contradicts “pattern[s] Guidelines, rather practice misconduct” than con- to enact- Guidelines, specific victions on counts “the dis- decisions of other because ment of circuits, Supreme recent authori- tinctions law Court that the makes as to con- what ty. separate stitutes counts or often offenses turn on espe- technical elements that are not 1B1.3 allows Section cially meaningful for purposes sentencing.” conduct” in all “relevant determin- background note. ing sentencing range. appropriate Where conduct, “[r]elying range on the entire multi- defendant has regardless the number counts that are pursuant ple grouped together counts sec- obtained, here, alleged 3D1.2(d), or on which a conviction tion such as relevant conduct appears approach “all to be the most includes acts and omissions reasonable part writing guidelines were course same workable for [offenses 3D1.2(d)].” bani, Cir.1995) (review- falling (emphasis Id. under added). ing give court should “due deference to the application district court’s guidelines amounting of conduct to “acts facts”). to the The district court based its and omissions of the same (1) finding on Putra’s admission of conduct or common that she was course scheme or as the offense of conviction” under subsection Vassilios Liaskos’s car when he sold co- (a)(2) (2) includes acts “committed or aided and 9; caine to May Alexander Panos on defendant, abetted or for which the testimony Panos’s that he met Putra on sev- defendant would be otherwise accountable.” cocaine, purchase eral occasions to including comment., Application n. 2. Note (3) 9;May testimony Liaskos, from who states that a defendant is “otherwise account- May stated that on 9 Putra met him able” for the “conduct of others ... in fur- lunch, although he and Putra never therance, reasonably foreseeable (4) day; fact went to lunch testimony on that with, [jointly nection undertaken] criminal Blackmon, from Richard Haller and Robert activity.” Id. grooming who said that Liaskos was Putra to govern court found that the (5) business; take over his evidence showing, by preponder ment succeedеd in compiled team, by a pho- surveillance ance of the that Putra in “was tographed and watched both the 8 and reasonably where it volved] May 9 transactions. provide These facts am- [drug] activity foreseeable that additional ple evidence that Putra could States, would continue.” See Witte v. United foresee that Liaskos would sell cocaine to - U.S. -, -, 2199, 2207, 115 S.Ct. Panos on 9 in furtherance of a (1995) (Witte) (State L.Ed.2d 351 need not activity, undertaken criminal and that Putra’s prove severity punish facts related to the involvement in the 9 transaction was doubt), beyond citing ment a reasonable part of the same course of conduct or com- 79, 84, Pennsylvania, McMillan v. 477 U.S. plan mon scheme or as her offense of convic- 2411, 2415, (1986); 106 S.Ct. 91 L.Ed.2d 67 tion. Because the district court did not — States, -, Nichols v. United U.S. clearly finding err in that Putra account- -, 1921, 1928, 114 128 L.Ed.2d S.Ct. 745 9, able for the drugs amount of sold on (1994) (Nichols) (State prove must conduct authority it had under section in- 1B1.3 to sentencing by preponderance considered in a clude the five ounces of cocaine sold on evidence); Restrepo, v. determining in9 her base offense level and (9th Cir.1991) (en 654, banc) 946 F.2d 656 corresponding sentencing range. (Sentencing Guidelines did not alter standard sentencing), proof required of of facts related tо This result is consistent IB with section 1.3 denied, rt. 503 U.S. 112 S.Ct. ce practice prior and this court’s to the enact (1992). 118 211 L.Ed.2d Sentencing Guidelines, of ment when a adopted court paragraph thus 19 of the Pre sentencing judge could consider a wide Report, sentence which states: punish of “in order to tailor the presence during The defendant’s [the ment to the criminal rather than to the transaction constitutes 9] relevant conduct Morgan, crime.” United v. 595 F.2d lB1.3(a)(2) pursuant that (9th Cir.1979) 1134, 1136 (Morgan); see also eodefendant Vassilios Liaskos’ conduct was Nichols, at -, U.S. 114 at S.Ct. 1928 a foreseeable act in furtherance (describing traditionally broad discretion ex activity, of a undertaken criminal courts). by sentencing ercised There is no well as of the same course of conduct Congress that evidence intended the Sen or common scheme as the offense tencing practice. Guidelines to alter this of conviction. purpose Reform Act clearly This is not erroneous. See (Act), §§ of 1984 18 U.S.C. 3551-3742 and 28 Karterman, United States v. 580 991-98, §§ U.S.C. “was to eliminate the ‘un Cir.1995) (Karterman) (“The factual disparities] uncertainty’ warranted and ... findings on which the lower court [a based sentencing.” sentencing] associated with indeterminate enhancement are reviewed for error.”); States, 129, 133, clear see alsо United States v. Sha- Burns v. United 501 U.S.

1392 (1991) 2182, 2184, citing authority, L.Ed.2d and used rationale 115 123 111 S.Ct. 49 (Burns), S.Rep. Supreme No. 98-225 at that Court now has discredited. quoting States, (1983); change also Mistretta Brady analysis? see Should our 647, 650-53, 361, 363-68, 109 S.Ct. 488 U.S. Brady sentencing court held that (1989) (recounting the Act’s L.Ed.2d jury necessarily facts that the sen impact traditional background rejected by judgment acquittal. Id. at Act “revolu tencing practices). While upwardly depart 851. The district court had district courts manner which tionized sentencing Brady ed from the Guidelines convicted federal persons sentence voluntary manslaughter on his based Burns, at crimes,” at S.Ct. U.S. mind, degree planning “state of and the determinancy one of revolution was 2184 the preparation offenses.” Id. at [the] only. at Id. reform procedural Brady argued the district court procedural reforms 2184-85. Such S.Ct. verdict, sentencing “effectively jury’s formality overrule[d]” into the injected more they only voluntary not remove discre him process, did which convicted man sentencing judges murder, slaughter, degree thereby tion exercised not first Id.; see the Guidelines. rejecting the enactment necessarily fact that he had comment, 6A1.3, (explaining also U.S.S.G. Accept to intend mental state murder. dispute there is a over what that where ing reasoning, Brady ruled that dis factor, permissible the Guide constitutes punish[ed] trict “in effect court defendant merely require the court “ensure lines for an for which he or she had adequate opportunity to parties have an acquitted.”. Id. at 852. further stated information,” present including “no relevant pervert system jus would “[w]e parties court’s] tentative tifyfing] [the pun tice if allowed a to suffer opportunity afford[ing] an findings and charge ishment for a criminal for which he or oversight or error sen before correction acquitted.” she was Id. at 851. ex —Witte, imposed”); U.S. tence cf. plicitly rejected reasoning adopted by -, (Sentencing 115 S.Ct. at 2207 Guide most appeals other courts of a sentenc —that altеr court’s discre lines ing may consider as relevant conduct conduct). uncharged relevant tion to consider government ‍​‌​​‌​​‌​‌​‌​​​​‌​​‌​‌‌​​​‌​‌​‌​​‌‌‌​​‌​​​‌​​‌​‌‍conduct provision The Guidelines’ relevant proved by of the evidence. merely by recog- future discretion channeled 12; Boney, Id. at n. see F.2d at 635- nizing that an offense is more serious when it 36; Mocciola, 13, States v. 891 United F.2d represents part pattern of a criminal con- (1st Cir.1989); Isom, 16-17 v. United States of other have duct. As the decisions circuits 736, (4th Cir.1989); 886 738-39 F.2d United “corresponds recognized, relevant conduct 747, Juarez-Ortega, States v. 866 F.2d 748- and circumstances that courts those actions (5th Cir.1989); Masters, 49 United States v. sentencing into whеn typically took account (7th 281, Cir.1992), 978 F.2d 285-87 cert. enactment.” to the Guidelines’ United denied, 906, 2333, 508 U.S. 113 S.Ct. 124 (1st 437, 441 Wright, v. F.2d Cir. 873 (1993); v. L.Ed.2d 245 United States Older Mack, 1989); v. see also United States 938 bak, (8th 756, Cir.), F.2d 961 764-65 cert. (6th Cir.1991) (section 678, 681 1B1.3 denied, 422, 959, 506 U.S. 113 S.Ct. 121 standing practice long a “memorializes (1992); L.Ed.2d 344 v. United States Rivera- judges”). trial (11th 372, Cir.1991). Lopez, 928 F.2d 373 practice in this court al- Pre-Guidelines Nevertheless, we have reaffirmed judges lowed times, recently most 1136; several United States sentencing. Morgan, 595 at (9th Watts, Cir.1995). 790, Atkins, v. 67 F.3d 796 v. 480 F.2d 1224 Karterman, Cir.1973). 581; (9th See also 60 F.3d at This should ended Pinkney, 829 in a States v. 15 F.3d matter for us and resulted unanimous Cir.1994) However, {Pinkney); v. affirmance of the Unit- United States Diaz- sentence. (9th Cir.), Rosas, F.2d 844 1307-08 cert. Brady, ed States 928 Cir. — 1991) denied, {Brady), practice, -, changed this withоut U.S. 114 S.Ct. (1994). recog- L.Ed.2d 473 These decisions same course of conduct necessarily also the “core rationale” of provides important nize that evidence that the char- —that system justice if “pervert our we would requires acter of the special pun- offender punishment for allowed a defendant suffer ishment. charge for he or she was

a criminal acquitted” “applicable to the use of ‘facts —is provisions The relevant conduct rejected by jury’s that have been Guidelines are sentencing enhancing as a basis for verdict’ defen- regimes enhancement evincing judg- Pinkney, dant’s sentence.” 15 F.3d at particular ment that a offense should re- Brady, quoting 928 F.2d at 851. ceive a more serious sentence within the Brady, But can we still adhere to or has it range if authorized it was accompa- either by subsequent Supreme been undermined preceded nied by additional criminal authority? recently reject Court The Court activity---- that, We hold leg- where the Brady’s reasoning ed in Witte. particular islature has authorized such a addressed in Witte whether section 1B1.3 punishment range crime, given for a cludes as “relevant conduct” for resulting sentence within that already punished which defendant has been punishment only stitutes for the offense of purposes jeopardy, of double its reason conviction. ing equally applicable to the issue at at---, (em- hand —whether section IB 1.3 ac Id. include at S.Ct. 2207-08 tivity acquit phasis original). which defendant has been recognized first ted. Witte that relevant con punishes The district court’s sentence Pu- duct under section 1B1.3 includes all conduct tra abetting possession “in which the defendant was and not with intent distribute one ounce of cocaine. just regard underlying to the conduct The court stated that it considered evidence —Witte, the offense of conviction.” at U.S. concerning 9 transaction “to show -, 115 S.Ct. at 2203. The Court then acts, other related other similar aсts which sentencing reaffirmed courts traditional punish person doesn’t for those acts but ly had discretion to consider a defendant’s just punished shows that [Putra] should be behavior, past criminal if no “even conviction more for the act for which the did find at -, resulted from that behavior.” guilty.” court’s Nichols, 2205, quoting S.Ct. U.S. her involvement 9 transaction at -, Finally, 114 S.Ct. at 1928. the Court supported constitutes “relevant conduct” is stated that “consideration of information about the defendant’s character and conduct clearly cannot be held to be erroneous. Fur- ‘punishment’ does not result in ‍​‌​​‌​​‌​‌​‌​​​​‌​​‌​‌‌​​​‌​‌​‌​​‌‌‌​​‌​​​‌​​‌​‌‍thermore, imposition its of a 27-month sen- other than the one which statutory tence falls well within the limit of —Witte, was convicted.” 841(b)(1)(C). years. See U.S.C. -, (emphasis U.S. at at 2207 S.Ct. Thus, properly determined added). The Court continued: by aggregating Putra’s offense level the co- aggra- To the extent that the Guidelines May May caine involved in the 8 and punishment vate related out- transactions. fully Because the sentence is side the elements of the crime on the Witte, consistent with I would affirm the theory that such conduct on bears the Brady district court. must not be considered offense,” “character of the the offender is continuing authority light as circuit in of punished only still for the fact that the Witte. present offense was out in a man- carried following But even still controlled punishment,

ner that warrants increased Witte, (which the district not for a court’s sentence should be that re- different constitute). Karterman, may upheld may lated conduct or not under which held Bra- But, dy’s holding while relevant conduct thus re- was narrow. Karterman was crime, severity particular filing late to the convicted of tax returns false and ac- multiple quitted conspiring the commission of offenses in the of to distribute cocaine find, of the cocaine. distribution and adjusted his base offense that she committed acts were court nevertheless failing report to levels upward two level same course of conduct or common scheme $10,000 from exceeding that came income plan as the offense of conviction. Such Karterman, 60 at activity. criminal may include in fur- acts “conduct others that, argued because 578. Karterman jointly-under- of [a] therance execution not that he did distrib- necessarily found jury activity reasonably taken criminal was cocaine, Brady to distribute conspire ute foreseeable the defendant.” U.S.S.G. adjustment. rejected upward barred 1B1.3, comment., ample n. 1. There is tell [could not] “we argument because evidence allowed district jury rejected evidenсe the facts or what find that Putra either committed acts that drug on [the Karterman acquitted it when part of the course same of conduct or counts].” Id. at conspiracy and distribution common scheme or jury might accepted “the 581. Because May 8; with intent to distribute cocaine on of Karterman’s distri- the evidence all engaged in undertaken criminal acquitted activity conspira- him bution May that made the 9 transaction Kar- rejected the evidence that cy because it reasonably example, to her. foreseeable For agreement with an another terman had presence May Putra’s at the 9 transaction reject jury necessarily Karter- supported testimony Haller and Blackmon’s in the substantive conduct involvement man’s grooming that Liaskos was Putra to take charge i.e., drug underlying conspiracy operation, thereby providing over his evi- trafficking.” (emphasis original). that Putra dence could foresee that the district court could we held May 9 transaction. ], sentencing purposes, “consider[ [ ] not proven not or was necessarily duct that was is not This inconsistent with added). (emphasis “[A] at 582 at trial.” Id. jury’s acquittal aiding Putra and Brady ] most interpretation [of narrow abetting with intent to dis- policy goals of the Guide- consistent with May conspiring tribute cocaine on 9 or for lines,” “generally permit quantity distribute a in excess cocaine judge to evidence of conduct that consider jury 500 grams. could have beyond proven not a reasonable doubt was aiding abetting charge Putra on the be- trial.” Id. at 581. government it found cause failed to prove to Karterman in that This case is similar she did not intend to commit crime jury necessarily cannot what facts the May opinion tell on See (restating rejected acquitting aiding Putra of on abetting instructions abetting possession with intent to distribute Further, charge). could have ac- majori- ounces 9. The five quitted conspirаcy her of the count because it wrong stating ty plainly that “[t]he conspired that she found distribute less jury’s acquittal finding is a that Putra was grams than 500 of cocaine. Neither of these commit, involved, not not did did not aid or possible precludes determinations the district abet, 9,1992 finding sufficiently court from that Putra was Let Opinion at 1389. me ex- transaction.” involved in the transaction why. plain day ounces of five cocaine sold on that First, undisputably it is true that an ac- determining her base offense level. See Kar- quittal is not a fact. An terman, (necessarily rejected at 581 only be acquittal acknowledgment can facts under do not include “facts that government prove that the failed to an essen- ‘possibly rejected’ ‘probably even beyond tial element of the offense reason- ”). rejected’ good even is still specific findings, able doubt. Without law, we should affirm district court’s realistically logically no one can draw sentence. inferences, including factual ma- jority. addition, to hold Putra un- accountable

der section district need The Notes sentencing. companying section IB 1.3 illustrate that the allow courts to consid- Guidelines WALLACE, Judge, dissenting: Chief surrounding activi- er circumstances criminal wrong an- toward the majority starts acquitted. ty Ap- for which a defendant was wrong quеstion: asking “wheth- swer it clear section plication Note makes for a judge can sentence er require 1B1.3 Putra “to does not guilty.” found crime of which multiple convicted of counts.” Id. at com- Putra was not sentenced or Opinion at ment., provides following n. 3. The Note 9, 1992, crime. Rath- punished for example: er, court sentenced her the district convicted, aiding and she was crime of the defendant in three [W]here intent to distribute possession with abetting 10, 15, grams and 20 sales May 8, 1992. The one of cocaine ounce cocaine, of the same course us Putra’s sentence issue is whether before plan, common conduct or scheme sub- may be increased because of crime (a)(2) provides quan- section total

Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 5, 1996

Citation: 78 F.3d 1386

Docket Number: 94-10040

Court Abbreviation: 9th Cir.