United States v. Watts, 519 U.S. 148, 10 (1997) (per curiam)

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Cite as: 519 U. S. 148 (1997)

Per Curiam

fore us today do not present such exceptional circumstances, and we therefore do not address that issue. We therefore hold 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.

Accordingly, the Court of Appeals erred in both cases before us today. In Putra, the jury simply found that the prosecution had not proved the defendant's complicity in the May 9 sale beyond a reasonable doubt. The acquittal sheds no light on whether a preponderance of the evidence established Putra's participation in that transaction. Likewise, in Watts, the jury acquitted the defendant of using or carrying a firearm during or in relation to the drug offense. That verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.

The petition for certiorari is granted, the judgments of the Court of Appeals are reversed, and the cases are remanded for further proceedings consistent with this opinion. Respondent Putra's motion to proceed in forma pauperis is granted. The motion of Morris L. Whitman for leave to file a brief as amicus curiae is granted.

It is so ordered.

ess where, as here, a sentencing enhancement factor becomes 'a tail which wags the dog of the substantive offense' ") (quoting McMillan, supra, at 88); United States v. Restrepo, 946 F. 2d 654, 656, n. 1 (CA9 1991) (en banc) (suggesting that clear-and-convincing evidence might be required for extraordinary upward adjustments or departures), cert. denied, 503 U. S. 961 (1992); United States v. Lam Kwong-Wah, 966 F. 2d 682, 688 (CADC) (same), cert. denied, 506 U. S. 901 (1992); United States v. Trujillo, 959 F. 2d 1377, 1382 (CA7) (same), cert. denied, 506 U. S. 897 (1992). But see United States v. Washington, 11 F. 3d 1510, 1516 (CA10 1993) ("At least as concerns making guideline calculations the issue of a higher than a preponderance standard is foreclosed in this circuit"), cert. denied, 511 U. S. 1020 (1994).


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