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

Cheryl Ann Putra was convicted of one count of aiding and abetting in the possession of one ounce of cocaine with intent to distribute. She appealed both her conviction and her sentence. In an unpublished memorandum disposition, we affirmed her conviction along with the convictions of her codefendants. United States v. Putra, No. 94-10040, 1996 WL 95243 (filed March 5, 1996). This opinion concerns her appeal of her sentence. Putra contends that the district court improperly considered as “relevant conduct” the cocaine involved in a separate count of which the jury acquitted her. We have jurisdiction under 28 U.S.C. § 1291 , and we remand for resentencing.

I.

Count 18 of Putra’s indictment charged her with aiding and abetting in the possession with intent to distribute one ounce of cocaine on May 8, 1992. Count 19 charged her with aiding and abetting possession with intent to distribute five ounces of cocaine on May 9,1992. In addition, she was charged in Count 2 with conspiring knowingly and intentionally to distribute a quantity of cocaine in excess of 500 grams. Following trial, the jury returned a guilty verdict on Count 18, but it acquitted her on Count 19 and Count 2.…

dissenting:

The majority starts toward the wrong answer by asking the wrong question: “whether a judge can sentence a defendant for a crime of which the jury found her not guilty.” Opinion at 1387. Putra was not sentenced or punished for the May 9, 1992, crime. Rather, the district court sentenced her for the crime of which she was convicted, aiding and abetting possession with intent to distribute one ounce of cocaine on May 8, 1992. The issue before us is whether Putra’s sentence for this crime may be increased because of her involvement in the May 9 transaction. In other words, the issue is whether Putra is accountable under section IB 1.3 of the 1991 United States Sentencing Guidelines for the five ounces of cocaine her codefendants possessed with intent to distribute on May 9. Because I believe the district court properly considered this amount in determining Putra’s base offense level, I respectfully dissent.

Merely because a jury acquitted Putra on charges related to the May 9 drug transaction does not preclude the district court from including the amount of cocaine involved in that transaction in determining her base offense level. The majority, however, concludes that…

78 F.3d 1386 96 Cal. Daily Op. Serv. 1477 , 96 Daily Journal D.A.R. 2489 UNITED STATES of America, Plaintiff-Appellee, v. Cheryl PUTRA, Defendant-Appellant. No. 94-10040. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1995. Decided March 5, 1996. Richard T. Pafundi, Honolulu, Hawaii, for defendant-appellant. Pat Merkamp Stemler, United States Department of Justice, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii; Harold M. Fong, Chief District Judge, Presiding. Before WALLACE, Chief Judge, HUG, and FARRIS, Circuit Judges. HUG, Circuit Judge: 1 Cheryl Ann Putra was convicted of one count of aiding and abetting in the possession of one ounce of cocaine with intent to distribute. She appealed both her conviction and her sentence. In an unpublished memorandum disposition, we affirmed her conviction along with the convictions of her codefendants. United States v. Putra, No. 94-10040, 1996 WL 95243 (filed March 5, 1996). This opinion concerns her appeal of her sentence. Putra contends that the district court improperly considered as "relevant conduct" the cocaine involved in a separate count…