Mr. Lucas objected that the quantities in the jury findings on count one were not relevant conduct for purposes of the Guidelines. But the district court believed that it was bound to use the jury's findings on count one because of United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) ("[W]hen sentencing a defendant under the guidelines, [a court] cannot rely on a finding that directly conflicts with the jury's verdict."). The district court did sustain other objections by Mr. Lucas, striking enhancements under USSG §§ 2D1.1(b)(12) and 3B1.1(b), but it overruled his objection to a two-level enhancement for possessing a dangerous weapon under USSG § 2D1.1(b)(1).

The analogy between a jury's special verdict and the factual findings recited in a presentence report is inapposite because while the recommendations of a probation officer do not bind a sentencing court, the court "cannot rely on a finding that directly conflicts with the jury's verdict." United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) (emphasis added); see also United States v. Reed, 264 F.3d 640, 648 (6th Cir. 2001) (holding that the district court could not depart below the applicable Guidelines range on the basis of a finding that conflicted directly with the jury's verdict). The jury in Lao's case found beyond a reasonable doubt that Lao was accountable for over 600,000 tablets (or 60 kilograms) of Ecstasy, yielding a base offense level of 38, and that Lao led or organized a conspiracy involving five or more participants, yielding a four-level enhancement.

Despite Defendant's invitation to do so, this Court cannot disturb those essential factual findings by the jury. See United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) (“[W]hen sentencing a defendant under the guidelines, [a court] cannot rely on a finding that directly conflicts with the jury's verdict”)

Although the Sixth Amendment permits judicial fact-finding in calculating Chontos's minimum sentence, the judge-found facts may not contradict the jury's verdict. See United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003). Chontos maintains that relying on acquitted conduct to calculate his minimum sentence violates this rule.

Vassar is correct that sentencing courts "cannot rely on a finding that directly conflicts with the jury's verdict." United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003). But here, given the differing standards of proof, there is no conflict.

In any event, the district court rejected Manning's "testimony" as uncorroborated and irrelevant to the jury's assessment of guilt. See generally United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) (noting that the district court may not make a finding that directly conflicts with the jury verdict); United States v. Reed, 264 F.3d 640, 648 (6th Cir. 2001) (holding that the district court could not depart below the applicable Guidelines range based on a finding that conflicted with the jury's verdict). Further, the crimes were five months apart, and without Manning's pretrial statement, there is no other link between the two offenses.

The trial court was in the best position to weigh this testimony during the in camera interview. See United States v. Cockett, 330 F.3d 706, 715 (6th Cir. 2003); United States v. Hart, 70 F.3d 854, 858 (6th Cir. 1995) ("Because the district court observes the trial first hand, it is in `the best position to assess the impact of the testimony within the context of the proceedings.'") (quoting United States v. Ushery, 968 F.2d 575, 580 (6th Cir. 1992)). The court decided to credit the witness's protestations against testifying in open court, and we cannot say that this determination constituted clear error.

Given the petit jury's finding as to the element of drug quantity, the district court erred as a matter of law by concluding that Campos intended 25% of the methamphetamine for personal consumption. See United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) (a district court errs as a matter of law if, when determining a defendant's sentence under the Guidelines, the court relies on a finding that directly conflicts with the jury's verdict). Once the jury found beyond a reasonable doubt that the amount of methamphetamine Campos had intended to distribute was 50 or more grams, it was a legal impossibility for the district court to find by a preponderance of the evidence that the amount of methamphetamine Campos intended to distribute was less than 50 grams.

Despite Defendant's invitation to do so, this Court cannot disturb those essential factual findings of the jury. See United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) (“[W]hen sentencing a defendant under the guidelines, [a court] cannot rely on a finding that directly conflicts with the jury's verdict”). Further, those findings by the jury on Count Four of the superseding indictment are identical to, and co-extensive with, the Guidelines' concept of relevant conduct under § 1B1.3(a)(1)(B) (providing that the defendant is responsible under the Guidelines “for all acts and omissions of others that were-- (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity

United States v. Fletcher, No. 10-5605, 2011 U.S. App. LEXIS 26575 at *4 (6th Cir. Jan. 13, 2011) (citing United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003)).