However, "even acquitted conduct can be considered when determining a sentence under the Sentencing Guidelines, so long as that conduct has been proved . . . by a preponderance of the evidence." United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000). We therefore reject this claim.
In considering a motion for judgment of acquittal based on the sufficiency of the evidence, the court must "view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence." United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.), cert. denied, 522 U.S. 866 (1997); accord United States v. Madrid, 224 F.3d 757, 761-62 (8th Cir. 2000) (stating that "in reviewing the District Court's denial of the motion for acquittal, we view the evidence in the light most favorable to the verdict and will reverse only if no reasonable jury could have found beyond a reasonable doubt that the defendant is guilty of the offense charged") (citation omitted); United States v. Vig, 167 F.3d 443, 447 (8th Cir. 1999) (observing that "[w]e review the district court's denial of a motion for judgment of acquittal based on the sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict."). The court can overturn a jury's verdict only if "`a reasonable fact-finder must have entertained a reasonable doubt about the government's proof'" of one of the essential elements of the crime charged.
In considering a motion for judgment of acquittal based on the sufficiency of the evidence, the court must "view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence." United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.), cert. denied, 522 U.S. 866 (1997); accord United States v. Madrid, 224 F.3d 757, 761-62 (8th Cir. 2000) (stating that "in reviewing the District Court's denial of the motion for acquittal, we view the evidence in the light most favorable to the verdict and will reverse only if no reasonable jury could have found beyond a reasonable doubt that the defendant is guilty of the offense charged") (citation omitted); United States v. Vig, 167 F.3d 443, 447 (8th Cir. 1999) (observing that "[w]e review the district court's denial of a motion for judgment of acquittal based on the sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict."). The court can overturn a jury's verdict only if "`a reasonable fact-finder must have entertained a reasonable doubt about the government's proof'" of one of the essential elements of the crime charged.
Applying a preponderance of the evidence standard for the government's burden of proof as opposed to the jury's application of a beyond a reasonable doubt standard, the district court may consider even acquitted conduct when attributing drugs to a defendant convicted of a drug conspiracy. See, e.g., Tirado, 313 F.3d at 440; United States v. Woods, 270 F.3d 728, 730 (8th Cir. 2001); United States v. Madrid, 224 F.3d 757, 762-63 (8th Cir. 2000). Because our review of the record does not "definitely and firmly convince us that a mistake has been made," United States v. Titlbach, 300 F.3d 919, 923 (8th Cir. 2002), we conclude the district court's drug quantity calculation was not clearly erroneous.
In fact, he concedes that acquitted and uncharged conduct can be considered so long as it is proven by a preponderance of the evidence. Accord United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000) (finding the district court's consideration of acquitted conduct appropriate at sentencing where such conduct was proven by preponderance of the evidence); United States v. Humphries, 961 F.2d 1421, 1422 (9th Cir. 1992) (approving the district court's consideration of uncharged conduct for purposes of firearm cross-reference guideline provision). He rather argues that the facts showed that he did not commit an aggravated assault on Janis because he used the gun in self-defense. The author of this opinion remains troubled by the government's use of felon-in-possession convictions to enhance a defendant's sentence for other uncharged or acquitted crimes.
See United States v. Walker, 324 F.3d 1032, 1041 (8th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 247, 157 L.Ed.2d 178 (2003). In United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000), a case decided after Apprendi, this court reaffirmed that acquitted conduct can be considered when determining a sentence under the Sentencing Guidelines, so long as that conduct has been proved by a preponderance of the evidence. The district court found that the total value of the loss, including the acquitted conduct, by a preponderance of the evidence, exceeded $350,000.00. Furthermore, the rule of Apprendi only applies where the district court's factual determination increases the maximum sentence beyond the statutory range authorized by the jury's verdict.
This Circuit allows acquitted conduct to be used for sentencing purposes if proved by a preponderance of the evidence, especially when a conspiracy charge is included. United States v. Woods, 270 F.3d 728, 730 (8th Cir. 2001); United States v. Madrid, 224 F.3d 757, 763 (8th Cir. 2000) (inclusion of related drugs was reasonably foreseeable for participant in conspiracy). Therefore, whether or not the district court used acquitted conduct to sentence Tirado, the district court properly calculated the amount of methamphetamine attributable to Tirado.
Juries can, and sometimes do, return inconsistent verdicts. See United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000) (the jury acquitted defendant of possession of methamphetamine with intent to distribute, but convicted him of conspiracy to distribute methamphetamine.). Based on the evidence adduced, a reasonable jury could infer Ruiz-Estrada entered into an agreement with Hernandez-Dominguez to stash drugs, drug paraphernalia and drug proceeds inside the apartment. We find the record contains ample evidence to support the conspiracy conviction.
Contrary to Ortega's argument, the jury's rejection of the conspiracy charge does not negate the evidence of his relationship to the other appellants. As the government notes, "`[a] jury may acquit a defendant as to one or more charges for any number of reasons, including an inclination to be merciful, and yet come to the reasonable conclusion that the defendant was guilty of other related charges.'" United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000) (quoting United States v. Whatley, 133 F.3d 601, 606 (8th Cir.), cert. denied, 524 U.S. 940, 118 S.Ct. 2347, 141 L.Ed.2d 717 (1998)). Ortega's reliance on United States v. Quintanar, 150 F.3d 902 (8th Cir. 1998), is misplaced.
"Juries can return inconsistent verdicts." United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000). "`A jury may acquit a defendant as to one or more charges for any number of reasons, including an inclination to be merciful, and yet come to the reasonable conclusion that the defendant was guilty of other related charges.