OPINION OF THE COURT
Following a joint jury trial in the United States District Court for the Western District of Pennsylvania, Charles Chappie and Donald E. Smith, Jr. were convicted of conspiring to distribute cocaine and to possess cocaine with the intent to distribute it, in violation of 21 U.S.C. § 846. Smith was also convicted of possession of cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841. The district court then sentenced Chappie to 170 months of imprisonment, 60 months of supervised release, and a $50.00 special assessment. The court sentenced Smith to 120 months of imprisonment, 48 months of supervised release, and $100.00 in special assessments. Each defendant filed a timely notice of appeal. We affirm their convictions, but we vacate their sentences and remand for the district court to make an explicit factual finding as to the weight of cocaine involved in their offenses and to resentence them accordingly.
I.
On May 7, 1991, Chappie drove from Los Angeles to a United Parcel Service (UPS) office in Baldwin Park, California, apparently unaware that he was under surveillance by police investigating his suspected
II.
A. On appeal, both defendants advance numerous arguments. We hold that all but one of these arguments lack merit or are not properly before us.
Both defendants’ sentences on the conspiracy count were based on a finding that the conspiracy involved more than five kilograms of cocaine. The district court itself, however, did not make such a finding. The judge had previously decided, with the active encouragement of counsel for Chappie and against the contrary argument of the government, that the weight of cocaine involved was an element of the substantive offense and was therefore a jury question. The jurors were charged, over the government’s objection, that they should not return a guilty verdict on the conspiracy counts unless they were convinced beyond a reasonable doubt that more than five kilograms of cocaine was involved.
B. The position originally urged by the government in the district court — that the weight of the drugs involved is a sentencing issue that must be decided by the judge rather than the jury — is correct. See, e.g., United States v. Martinez-Zayas,
We agree with the Sixth Circuit that “[t]he district court is not bound by the jury’s verdict ... despite the jury’s finding as to the quantity of drugs involved in the conspiracy or scheme. The district court committed error ... by considering itself bound at sentencing by the jury’s findings.” United States v. Moreno,
In Moreno, the government benefited from the rule that a jury verdict including a finding as to weight does not preclude a contrary finding by the judge at sentencing. Here, the defendants stand to benefit from the same rule. We are sympathetic to the government’s argument that, by changing their legal theories as to the proper fact-finder of the weight, “Chap-pie and Smith certainly sought to have the best of both worlds.” We are also sympathetic to the district judge, who is now attacked by the defendants for erroneously adhering to the view that they themselves first urged upon him. We nonetheless think that a remand to the district court for a factual finding as to the weight of the cocaine involved in the conspiracy is appropriate.
While the defendants did stipulate at trial what the substance of the government’s witnesses’ testimony concerning the weight of the cocaine would have been had those witnesses been called, the defendants did not explicitly stipulate that that testimony would have been accurate. This distinguishes this case from Martinez-Zayas, where the district court had no need to find facts because the parties had stipulated that the cocaine weighed 12 kilograms.
III.
For these reasons, we affirm the convictions of both defendants, but we vacate their sentences and remand these cases to the district court for further proceedings and resentencing in accordance with this opinion.
Notes
.Chappie also contends that the district court erred: (1) in admitting evidence of the contents of the parcel that he attempted to ship via UPS and that was opened pursuant to a warrant; (2) in admitting evidence of items discovered during a search of his Los Angeles residence pursuant to a warrant; (3) in admitting evidence of items discovered during a search of his Pittsburgh residence pursuant to a warrant, particularly including false identification documents, firearms, and a bulletproof vest; (4) in admitting evidence of his "lavish lifestyle”; and (5) in refusing to grant his motion for a mistrial and/or severance when Smith’s counsel elicited testimony that Chappie had refused to make a statement after being advised of his Miranda rights.
Smith also contends that the district court erred: (1) in giving the jury a "deliberate ignorance" instruction on the knowledge element of the offenses and (2) in allowing cross-examination of his mother concerning her knowledge of his earlier state conviction for possessing a firearm without a license.
After careful consideration, we decline to vacate or reverse either defendant’s conviction on any of these grounds.
Smith further contends that various acts and omissions of his trial counsel and of Chappie’s trial counsel (who had formerly been married to Smith’s trial counsel) deprived him of his constitutional right to the effective assistance of counsel. Such claims generally cannot be made on direct appeal, and we do not believe any of the exceptions to this rule apply in this case. We therefore affirm Smith’s conviction without deciding the merits of his ineffective assistance claims, which he remains free to raise in subsequent proceedings.
. There appears to have been no instruction on conspiracy to possess with intent to distribute less than five kilograms of cocaine as a lesser included offense.
. There appears to be a dispute, which we do not now need to resolve, as to whether the language of the stipulation unequivocally shows that the weights given excluded the weight of the paper and tape in which the powder was packaged.
. We disagree with the government’s argument on appeal that Chappie’s counsel abandoned his request to put in evidence regarding the weight of the cocaine. After the district court had stated that it thought that the jury’s finding was “preclusive,” Chappie’s counsel stated (App. 3800):
Your Honor, that being the case, I don’t think there’s any necessity to call witnesses, although I do have witnesses in the courtroom.
We do not interpret this statement as a waiver of the argument.
. By our calculations, if sentenced within the Guidelines range for the same offense but involving just under five kilograms of cocaine rather than just over five kilograms of cocaine, Chappie would receive a sentence of between 121 and 151 months, rather than the 170 months he in fact received. Smith would receive a sentence of between 78 and 97 months, rather than the 120 months he in fact received. (Since Chappie’s conviction for possession is "closely related” to his conviction for conspiracy and the possession count involved substantially less cocaine, his total sentence for both counts is governed by the weight of cocaine involved in the conspiracy.)
.Smith was convicted of violating 21 U.S.C. § 841(a). Both Chappie and Smith were convicted of violating 21 U.S.C. § 846 which makes unlawful, inter alia, conspiracies to violate § 841(a).
. The relevant weight is that at the time of the offense, not, as the defense argued at one point in the district court, the weight at the time of sentencing. See App. 3795-96.