                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10379

                Plaintiff-Appellee,             D.C. No.
                                                2:07-cr-00145-KJD-PAL-7
 v.

KENNETH RUSSELL KRUM, AKA                       MEMORANDUM*
Barnyard, AKA Big Pimping, AKA Yum
Yum,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                          Submitted September 14, 2017**
                             San Francisco, California

Before: SILER,*** TALLMAN, and BEA, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.


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      Kenneth Krum was convicted of Conspiracy to Engage in a Racketeering

Influenced Corrupt Organization (“RICO”) enterprise, in violation of 18 U.S.C.

§ 1962(d), and Conspiracy to Distribute a Controlled Substance, in violation of 21

U.S.C. §§ 841(a)(1) and 846. He appeals his sentence, arguing that the district

court’s decisions to determine the drug weight for the RICO count and to apply an

enhancement for firearm possession were unreasonable. For the following reasons,

we affirm.

1.    Sentencing courts have broad discretion when determining a defendant’s

sentence. See United States v. Watts, 519 U.S. 148, 151 (1997) (“No limitation

shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States may

receive and consider for the purpose of imposing an appropriate sentence.”

(quoting 18 U.S.C. § 3661)). “[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.” Id. at 157.

      If a jury returns a special verdict in which it makes an affirmative finding

that the government proved beyond a reasonable doubt that the defendant

possessed less than a certain amount of drugs, the sentencing court may not make

its own finding at sentencing regarding drug weight for that conviction. United

States v. Pimentel-Lopez, 859 F.3d 1134, 1142–43 (9th Cir. 2017). However,



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“where the jury makes no finding as to quantity or finds an unspecified amount,

there would be no inconsistency between the verdict and any quantity that the

judge finds during sentencing.” Id. at 1142. Additionally, “any jury finding that

does not set an upper boundary would leave the district court free to find a greater

quantity in determining the sentencing range.” Id. The jury only made this finding

on the conspiracy to distribute count.

2.    Krum’s sentence is procedurally reasonable. The district court’s decision to

make its own findings regarding the drug weight used to calculate the base offense

level for the RICO charge was not in error. Krum relies on Pimentel-Lopez to

challenge the district court’s decision, but Pimentel-Lopez differs significantly

because the jury in Krum’s case was not asked to return a special verdict on the

RICO charge. The jury made a finding only on the conspiracy to distribute count.

Thus, because the jury never made an affirmative finding regarding the drug

amount for the RICO conviction, the sentencing court properly determined the

drug quantity for that count under a preponderance of the evidence standard rather

than using the drug quantity determined by the jury in its special verdict on the

conspiracy to distribute charge.

3.    Furthermore, the district court’s decision to enhance Krum’s sentence for

possession of a firearm during a drug offense, even though Krum was acquitted of

a similar charge, was not in error. Watts clarified that acquitted conduct could be



                                         3
used in determining a sentence when the sentencing court finds, by a

preponderance of the evidence, that the conduct occurred. See 519 U.S. at 157

(“[T]he 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.”).

4.    Finally, Krum’s sentence is substantively reasonable. We reject Krum’s

argument that his sentence violates the Fifth and Sixth Amendments because it

would be unreasonable but-for judge-found facts. See United States v. Treadwell,

593 F.3d 990, 1017 (9th Cir. 2010) (rejecting an identical argument).         The

sentencing court did not err when determining the base offense level and

enhancements.

      AFFIRMED.




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