United States v. Jackson No. 07-30981
http://www.ca5.uscourts.gov/opinions/pub/07/07-30981-CR0.wpd.pdf
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. AFFIRMED. (February 3, 2010).
Lanugage from Fifth Circuit Commentary:
On a special jury form, the jury had found Midkiff and his co-conspirators guilty of conspiracy to distribute 50 grams or less of methamphetamine, but not guilty of conspiracy to distribute 50 to 500 grams or 500 grams or more. Nonetheless, the Probation Officer attributed 1,318 grams to Midkiff in his pre-sentence report, based on extrapolation from estimates provided by co-conspirators. This increased Midkiff's base offense level by at least eight. On appeal, Midkiff argued that the District Court erred by increasing the quantity of drugs attributable to him for sentencing purposes. The Court rejected that argument, concluding that the quantity attributed to Midkiff had an evidentiary basis with sufficient indicia of reliability, which was all that was required, despite the jury's verdict.
This is not new law, but still is unfair. You win the jury verdict, but still get sentenced for the same drugs the jury said the defendant was not responsible for.