                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 14-30210
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    2:13-cr-00024-SEH-1

JESUS PIMENTEL-LOPEZ,
         Defendant-Appellant.              OPINION


      Appeal from the United States District Court
              for the District of Montana
    Sam E. Haddon, Senior District Judge, Presiding

        Argued and Submitted October 15, 2015
                 Seattle, Washington

                    Filed July 15, 2016

      Before: Alex Kozinski, William A. Fletcher
        and Raymond C. Fisher, Circuit Judges.

              Opinion by Judge Kozinski
2             UNITED STATES V. PIMENTEL-LOPEZ

                           SUMMARY*


                          Criminal Law

    The panel vacated a sentence and remanded for
resentencing in a case in which the jury made a special
finding that the quantity of drugs involved was less than 50
grams, but the district judge calculated the sentence based on
his own finding that the quantity involved was far in excess
of 50 grams.

    The panel wrote that the Apprendi v. New Jersey line of
cases is beside the point because the defendant is not
complaining that the district court raised the maximum
statutory sentence, and that this is not a case where the jury
failed to find a fact under the exacting standard applicable to
criminal cases. The panel explained that this is a case where
the jury made an affirmative finding after deliberations, under
the highest standard of proof, that the amount of
methamphetamine attributable to the defendant is less than 50
grams. The panel held that district judges do not have the
power to contradict the jury’s finding under these
circumstances. The panel remanded with instructions that the
defendant be resentenced on the premise that the quantity of
drugs involved in his crimes was less than 50 grams.

    The panel held that because two witness’s hearsay
statements did not meet the “minimal indicia of reliability”
standard, the district court was not justified in relying on
them in determining the sentence. Because absent these

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. PIMENTEL-LOPEZ                    3

statements, there is no evidence that the defendant exercised
some control over others involved in the commission of the
evidence, the panel held that the district court clearly erred in
assessing an organizer enhancement pursuant to U.S.S.G.
§ 3B1.1(c).


                         COUNSEL

Timothy M. Bechtold (argued), Bechtold Law Firm, PLLC,
Missoula, Montana, for Defendant-Appellant.

Zeno B. Baucus (argued) and Michael S. Lahr, Assistant
United States Attorneys; Michael W. Cotter, United States
Attorney; United States Attorney’s Office, Helena, Montana;
for Plaintiff-Appellee.


                          OPINION

KOZINSKI, Circuit Judge:

    The jury in defendant’s criminal case made a special
finding that the quantity of drugs involved was “less than 50
grams.” We consider whether the district judge may
nevertheless calculate defendant’s sentence based on the
judge’s finding that the quantity involved was far in excess of
50 grams.

                            FACTS

   Defendant was convicted of possession of
methamphetamine with intent to distribute and conspiracy to
possess with intent to distribute, in violation of 21 U.S.C.
4             UNITED STATES V. PIMENTEL-LOPEZ

§§ 841(a)(1) and 846. The punishment for both of these
crimes is determined by section 841(b), which sets
differential punishments, depending on drug type and
quantity. If the quantity involved is less than 50 grams or an
indeterminate amount, then the maximum sentence is 20
years. § 841(b)(1)(C). The statute sets higher minimum
and maximum sentences for larger drug quantities.
§ 841(b)(1)(A)–(B).

    With the consent of both parties, the court gave the jury
a verdict form, which it filled out as follows:

       Having found Jesus Pimentel-Lopez guilty of
       the charge . . . we unanimously find beyond a
       reasonable doubt the amount of a substance
       containing a detectable amount of
       methamphetamine attributable to Jesus
       Pimentel-Lopez to be:

          x     Less than 50 grams of a substance
                containing a detectable amount of
                methamphetamine.

                50 grams or more, but less than 500
                grams, of a substance containing
                a detectable amount of
                methamphetamine.

                500 grams or more of a substance
                containing a detectable amount of
                methamphetamine.

   At sentencing, the district judge found that the actual
quantity attributable to defendant’s crimes was 4.536 kg,
              UNITED STATES V. PIMENTEL-LOPEZ                          5

which yielded a Sentencing Guidelines range of 235 to 293
months.1 The judge then sentenced defendant to 240
months—the statutory maximum sentence for a quantity of
less than 50 grams. § 841(b)(1)(C). Had the court been
bound by the jury’s determination that the quantity
attributable to Pimentel-Lopez was less than 50 grams, the
sentencing range would have been 63–78 months.2 The
court’s 240-month sentence would then have represented a
substantial upward departure.

                            ANALYSIS

                                   I

    The principal question presented is whether the district
judge was entitled to make a drug quantity finding in excess
of that found by the jury in its special verdict. The district
court believed it was entitled to do so because “[t]here is no
increase in the statutory maximum sentence beyond the 20
years or 240 months that is charged in the [i]ndictment.”

   In reaching its conclusion, the district court relied on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its


 1
   Under the then-applicable Sentencing Guidelines section 2D1.1(c) the
offense level for possessing at least 1.5 kg but less than 5 kg of
methamphetamine was 34. The court also assessed a two-level
enhancement under Guidelines section 3B1.1(b) upon finding that
Pimentel-Lopez was an organizer of the conspiracy. The corresponding
sentencing range for a net offense level of 36 and a criminal history
category of III was 235 to 293 months. See U.S.S.G., ch. 5, pt. A (Nov.
2013).
 2
   Assuming a level 24 offense under section 2D1.1(c), a criminal history
category of III and no organizer enhancement. See U.S.S.G., ch. 5, pt. A.
6           UNITED STATES V. PIMENTEL-LOPEZ

progeny, which leave it up to the district judge to find any
facts bearing on sentencing, other than those that would
increase the statutory sentencing range. See, e.g., Alleyne v.
United States, 133 S. Ct. 2151, 2163 (2013); Apprendi,
530 U.S. at 481. But the Apprendi line of cases is beside the
point, because defendant is not complaining that the district
court raised the maximum statutory sentence. Rather, he
argues that the court’s finding that the drug quantity found
was more than 50 grams contradicts the jury’s special finding
that the drug quantity was less than 50 grams. The jury found
“beyond a reasonable doubt [that] the amount of
[methamphetamine] attributable to Jesus Pimentel-Lopez [is]
. . . [l]ess than 50 grams.” This is not a case where the jury
failed to find a fact under the exacting standard applicable to
criminal cases. See, e.g., United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam). Where this happens, the
district judge is free to find the same fact under a less
stringent standard of proof. Id. Rather, what we have here is
a case where the jury made an affirmative finding, under the
highest standard of proof known to our law, that the amount
of methamphetamine attributable to defendant is less than 50
grams. The district court cannot attribute more than that
amount to defendant without contradicting the jury on a fact
it found as a result of its deliberations. District judges have
many powers, but contradicting juries as to findings of facts
they have been asked to make is not among them.

      In reaching the contrary conclusion, the district judge
overlooked our caselaw on point. In Mitchell v. Prunty,
107 F.3d 1337, 1339 n.2 (9th Cir. 1997), overruled on other
grounds by Santamaria v. Horsley, 133 F.3d 1242, 1248 (9th
Cir. 1998) (en banc), we noted as follows: “Special findings
. . . are dispositive of the questions put to the jury. Having
agreed to the questions, the government cannot now ask us to
            UNITED STATES V. PIMENTEL-LOPEZ                   7

ignore the answers; to do so would be a clear violation of
petitioner’s Sixth Amendment rights.”

    The precise issue presented in Mitchell differed slightly
from that presented here, but the difference actually makes
ours an easier case. In Mitchell we considered whether there
was sufficient evidence to convict petitioner of murder when
the only evidence of his involvement was one witness’s
testimony that he drove the car that ran over the victim’s
body. Id. at 1342. We concluded that there was insufficient
evidence to support the verdict because the jury had
elsewhere made a special finding that petitioner “was not the
driver of the car which drove over” the victim. Id.

    In its petition for rehearing, the state asked us to ignore
the special finding as a case of inconsistent verdicts. Id. at
1339 n.2. We treated the special finding as binding even on
the jury itself. Id. The special finding must also be binding
on the parties and the court.

      In our case, the jury was asked to find the upper limit of
the quantity of illegal drugs involved in Pimentel-Lopez’s
crimes, and it did just that:              “[T]he amount of
[methamphetamine] attributable to Jesus Pimentel-Lopez [is]
. . . [l]ess than 50 grams.” This was not a gratuitous finding
added by the jury of its own accord as in Floyd v. Laws,
929 F.2d 1390, 1397 (9th Cir. 1991). The parties presented
evidence on point and the jury was instructed that this was a
permissible finding. In such circumstances, the finding is
binding, no matter how inconvenient it may be in subsequent
proceedings.

   Some of our sister circuits seem to have held that a jury’s
special-verdict finding that the quantity of drugs involved in
8           UNITED STATES V. PIMENTEL-LOPEZ

the crime is less than a particular amount did not preclude the
judge from finding a greater quantity for purposes of
sentencing. See United States v. Webb, 545 F.3d 673, 677
(8th Cir. 2008); United States v. Magallanez, 408 F.3d 672,
685 (10th Cir. 2005); United States v. Goodine, 326 F.3d 26,
33–34 (1st Cir. 2003); United States v. Smith, 308 F.3d 726,
745–46 (7th Cir. 2002). But those cases did not directly
address the argument raised by Pimentel-Lopez—that the
affirmative finding by the jury that the quantity of drugs
involved was less than a specific amount precluded a
contradictory finding by the district judge during sentencing.

    All four cases held that the district court’s sentencing did
not violate the Apprendi line of cases. But, as explained
above, Apprendi has no bearing on our analysis. In addition,
the other circuits addressed the drug quantity finding only in
passing, while emphasizing the less demanding
preponderance-of-the-evidence standard governing judicial
factfinding at sentencing. See Webb, 545 F.3d at 676–77;
Smith, 308 F.3d at 745–46. They therefore implicitly relied
on the holding of Watts to the effect that “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.” 519 U.S. at 157. The rationale of Watts is that
“[a]n acquittal can only be an acknowledgment that the
government failed to prove an essential element of the
offense beyond a reasonable doubt.” Id. at 155 (quoting
United States v. Putra, 78 F.3d 1386, 1394 (9th Cir. 1996)
(Wallace, C.J., dissenting)). This rationale is inapplicable
where, as here, we have an affirmative finding that the
amount in question is less than a particular amount. Or, to
put it differently, there is no inconsistency between a jury’s
acquittal as to a particular fact that had to be proved beyond
            UNITED STATES V. PIMENTEL-LOPEZ                  9

a reasonable doubt and a later finding that the same fact is
proved by a preponderance of the evidence. But there is an
inconsistency between a jury’s finding that the amount is less
than 50 grams and a later finding by the judge that the amount
is more than 50 grams.

    Some of our sister circuits seem to have assumed that the
juries’ findings merely acquitted defendants of possessing
higher quantities of drugs, and that may have been warranted
on the record before them. See, e.g., Magallanez, 408 F.3d at
682 (“When we review a verdict where the jury did not find
a specific amount of drugs attributable to the defendant, but
a range, we only know that the jury found unanimously the
amount at the bottom of the range.”). Here, by contrast, the
record is clear that the jury didn’t merely acquit defendant of
possessing 50 grams or more of methamphetamine; it made
an affirmative finding “beyond a reasonable doubt” that the
amount attributable to defendant was “[l]ess than 50 grams.”
Our own caselaw, and simple logic, precludes us from
vouchsafing sentencing judges the power to make
contradictory findings under these circumstances.

    Our conclusion does raise a fair question: How is it
possible to punish a defendant convicted of crimes involving
less than 50 grams to the full statutory term of 240 months,
when the Sentencing Guidelines cap the term available when
the drug quantity involved is less than 50 grams at 125
months? In other words, does a jury’s finding that the
quantity of drugs falls in the 0 to 50 range always preclude a
district judge from punishing the defendant for quantities in
excess of 50 grams? The judge may, of course, depart
upward from the sentencing range generated by the jury’s
findings. Also, where the jury makes no finding as to
quantity or finds an unspecified amount, there would be no
10          UNITED STATES V. PIMENTEL-LOPEZ

inconsistency between the verdict and any quantity that the
judge finds during sentencing. And 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.

    In our case, the government agreed to special verdict
questions that set both a lower and an upper boundary for the
amount of drugs involved. That may have been a blunder,
but the jury answered the questions it was asked and so the
die is cast: The government cannot disavow the finding that
the jury makes as a result. 107 F.3d at 1339 n.2. Because the
district court enhanced defendant’s sentence based on its
finding that more than 50 grams of a controlled substance
were involved in defendant’s crimes, we must vacate the
sentence and remand with instructions that defendant be
resentenced on the premise that the quantity of drugs
involved in his crimes was less than 50 grams, as the jury
found.

                              II

    The district court also applied a two-level enhancement
under Guidelines section 3B1.1(c) upon finding that
Pimentel-Lopez directed the behavior of his co-conspirators.
Under section 3B1.1(c), “[i]f the defendant was an organizer,
leader, manager, or supervisor in any criminal activity,”
courts are instructed to increase a defendant’s offense by two
levels. The application notes to section 3B1.1 clarify that
“[t]o qualify for an adjustment . . . the defendant must have”
either “been the organizer, leader, manager, or supervisor of
one or more other participants” or must have “exercised
management responsibility over the property, assets, or
activities of a criminal organization.” U.S.S.G. § 3B1.1 n.2.
              UNITED STATES V. PIMENTEL-LOPEZ                          11

    “A court may impose this enhancement if there is
evidence that the defendant exercised some control over
others involved in the commission of the offense or was
responsible for organizing others for the purpose of carrying
out the crime.” United States v. Whitney, 673 F.3d 965, 975
(9th Cir. 2012) (internal quotation marks omitted). But “even
a defendant with an important role in an offense cannot
receive an enhancement unless there is also a showing that
the defendant had control over others.” Id. (internal quotation
marks omitted).

    The government introduced scant evidence that Pimentel-
Lopez directed his co-conspirators. During Pimentel-Lopez’s
sentencing hearing, an agent testified that Jesus Elizondo—a
co-conspirator who didn’t testify—said that Pimentel-Lopez
directed Elizondo’s fiancée, Heather Mallo, and Mallo’s
sister, Elizabeth Gardiner, to rent a house “to be used . . . to
distribute drugs.” Mallo corroborated this allegation during
a pre-trial police interview.3 But when Mallo and Gardiner
testified at Pimentel-Lopez’s trial, neither mentioned that he
directed them to rent a residence. Moreover, Gardiner
testified that she couldn’t even communicate with Pimentel-
Lopez because she didn’t speak Spanish. During an interview
with the investigating agents and before entering his guilty
plea, Elizondo declared that Pimentel-Lopez directed two
individuals to deposit the proceeds of the drug sales into a
bank account. But this statement was only corroborated by
Mallo’s pre-trial statements to the police, not by her trial
testimony.




  3
    To the extent that we refer here to facts contained exclusively in the
presentence report, we pro tanto lift the order sealing that document.
12          UNITED STATES V. PIMENTEL-LOPEZ

    “Generally, hearsay evidence . . . may be used in
sentencing,” but “we require that ‘some minimal indicia of
reliability accompany a hearsay statement.’” United States v.
Huckins, 53 F.3d 276, 279 (9th Cir. 1995) (quoting United
States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993)).
Elizondo’s “statements were not made under oath, nor at trial
where he could be cross-examined.” Id. Furthermore, “a
codefendant’s confession inculpating the accused is
inherently unreliable.” Lee v. Illinois, 476 U.S. 530, 546
(1986). This “time-honored teaching” is equally applicable
in the sentencing as in the conviction context. See Huckins,
53 F.3d at 279 (quoting Lee, 476 U.S. at 546).

    “[E]xternal consistency” may demonstrate “the reliability
of hearsay statements by co-defendants.” United States v.
Berry, 258 F.3d 971, 976 (9th Cir. 2001). “Specifically,
hearsay statements by co-defendants that are consistent with
each other may be deemed sufficiently reliable even if such
statements are self-serving and contrary to the testimony of
the defendant.” Id. at 976–77. Here, Elizondo’s statements
were only corroborated by his fiancée, and even then only out
of court.       Gardiner’s testimony that she couldn’t
communicate with Pimentel-Lopez casts further doubt on
Elizondo’s and Mallo’s hearsay statements. In light of these
facts, Elizondo’s hearsay statements have not been
“sufficiently corroborated . . . to provide the minimal indicia
of reliability necessary to qualify the statements for
consideration by the district court during sentencing.” Id. at
977.

    Because Elizondo’s and Mallo’s hearsay statements do
not meet our “minimal indicia of reliability” standard, the
district court was not justified in relying on them in
determining Pimentel-Lopez’s sentence. Absent these
           UNITED STATES V. PIMENTEL-LOPEZ               13

statements, there is no evidence indicating that Pimentel-
Lopez “exercised some control over others involved in the
commission of the offense.” United States v. Yi, 704 F.3d
800, 807 (9th Cir. 2013). It was therefore clearly erroneous
to assess the organizer enhancement. See id.

                    *        *        *

    We VACATE Pimentel-Lopez’s sentence and REMAND
for resentencing.
