514
Opinion of the Court
amount and the kind of "controlled substances" for which a defendant should be held accountable—and then to impose a sentence that varies depending upon amount and kind. See United States v. Watts, 519 U. S. 148 (1997) (per curiam) ( judge may consider drug charge of which offender has been acquitted by jury in determining Guidelines sentence); Witte v. United States, 515 U. S. 389 (1995) ( judge may impose higher Guidelines sentence on offender convicted of possessing marijuana based on judge's finding that offender also engaged in uncharged cocaine conspiracy). Consequently, regardless of the jury's actual, or assumed, beliefs about the conspiracy, the Guidelines nonetheless require the judge to determine whether the "controlled substances" at issue—and how much of those substances—consisted of cocaine, crack, or both. And that is what the judge did in this case.
Virtually conceding this Guidelines-related point, petitioners argue that the drug statutes, as well as the Constitution, required the judge to assume that the jury convicted them of a conspiracy involving only cocaine. Petitioners misapprehend the significance of this contention, however, for even if they are correct, it would make no difference to their case. That is because the Guidelines instruct a sentencing judge to base a drug-conspiracy offender's sentence on the offender's "relevant conduct." USSG § 1B1.3. And "relevant conduct," in a case like this, includes both conduct that constitutes the "offense of conviction," id., § 1B1.3(a)(1), and conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction," id., § 1B1.3(a)(2). Thus, the sentencing judge here would have had to determine the total amount of drugs, determine whether the drugs consisted of cocaine, crack, or both, and determine the total amount of each—regardless of whether the judge believed that petitioners' crack-related conduct was part of the "offense of conviction," or the judge believed that it was "part of the same course of conduct or common
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