                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0754n.06

                                          No. 10-3402
                                                                                        FILED
                           UNITED STATES COURT OF APPEALS                          Nov 09, 2011
                                FOR THE SIXTH CIRCUIT                        LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                       )
                                                )
         Plaintiff-Appellee,                    )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
PATRICK PUTTICK,                                )    NORTHERN DISTRICT OF OHIO
                                                )
         Defendant-Appellant.                   )


         Before: NORRIS, SUTTON and GRIFFIN, Circuit Judges.


         SUTTON, Circuit Judge. Patrick Puttick appeals a twenty-year sentence arising from a

RICO-conspiracy conviction. We affirm.


                                                I.


         In June 2004, a federal jury convicted Puttick of a RICO conspiracy stemming from his

activities in a gang called the Outlaw Motorcycle Club. See 18 U.S.C. § 1962(d). The same jury

acquitted him of three other RICO and drug-distribution counts. The PSR attributed 144 kilograms

of cocaine to Puttick, yielding an initial offense level of 36, and recommended a four-level

enhancement for his role as a leader of criminal activity involving five or more participants, see

U.S.S.G. § 3B1.1, for a total offense level of 40. The PSR recommended a criminal history category

of II.
No. 10-3402
United States v. Puttick

       The district court adopted all of the PSR’s recommendations, save one: It lowered Puttick’s

offense level to 39, applying just a three-level enhancement for his role in the criminal organization.

Because the resulting guidelines range (292–365 months) exceeded the statutory maximum (240

months), see 18 U.S.C. § 1963(a), the district court sentenced Puttick to the statutory maximum. On

appeal, we vacated the sentence and ordered resentencing because the district court had treated the

sentencing guidelines as mandatory. United States v. Puttick, 288 F. App’x 242, 245 (6th Cir. 2008).

At resentencing, Puttick received the same sentence as before, but we vacated the sentence because

an equipment malfunction prevented transcription of the sentencing hearing. The district court once

more imposed a twenty-year sentence, and Puttick once more appeals.


                                                  II.


       Puttick argues that his sentence was procedurally and substantively unreasonable. His

primary complaint is that the district court sentenced him on the basis of relevant conduct, namely

his possession or distribution of 144 kilograms of cocaine, even though the jury acquitted him of

several drug-conspiracy counts related to the same conduct. The problem for Puttick is that this

court already has considered and rejected the same argument. A “district court’s consideration of

acquitted conduct in sentencing passes constitutional muster,” we have held, so long as the court

finds the conduct by a preponderance of the evidence. United States v. White, 551 F.3d 381, 386 (6th

Cir. 2008) (en banc).




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No. 10-3402
United States v. Puttick

       The record contains ample evidence to support the district court’s finding that Puttick was

responsible for possessing or distributing 144 kilograms of cocaine. The district court relied on the

testimony of Tracy Tipton, the former girlfriend of Gary Hohn, one of Puttick’s gang-related

associates, concluding that “[Tipton’s] testimony alone” provided “ample justification” for its

finding. R.2169 at 25. Tipton testified that Hohn obtained between three and six kilograms of

cocaine per month from Puttick during the four-to-five-year period in which Tipton lived with Hohn.

That amounts to at least 144 kilograms of cocaine. Consistent with our decision in White and

inconsistent with Puttick’s arguments, a jury’s decision to acquit Puttick of drug charges under a

beyond-a-reasonable-doubt standard does not prevent a district court from finding that same conduct

under a preponderance-of-the-evidence standard.


       Puttick’s other procedural-reasonableness arguments fare no better. He contends that the

district court should not have applied a three-level upward adjustment based on his role as a manager

in the conspiracy. Yet, as we recognized in his prior appeal, the government presented evidence that

Puttick “was the boss of the Green Region of the [Outlaw Motorcycle Club]” and “had participated

in making drug distribution policies for [the club],” 288 F. App’x at 244, which qualifies him for the

three-level enhancement. See United States v. Mitchell, 295 F. App’x 799, 802 (6th Cir. 2008). Nor

was Puttick entitled to a two-level reduction for acceptance of responsibility. He failed to object on

this ground at sentencing, meaning we review it for plain error. United States v. Vonner, 516 F.3d

382, 385 (6th Cir. 2008) (en banc). No such error occurred. Puttick offers no explanation why he




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No. 10-3402
United States v. Puttick

deserves the reduction, given that he pled not guilty, went to trial and to this day denies that he

committed the acts for which he was sentenced. See U.S.S.G. § 3E1.1 n.2.


        To the extent Puttick raises a separate substantive-reasonableness argument, we reject it. The

district court properly calculated the guidelines range and, after finding that the low end of the range

exceeded the statutory maximum, permissibly sentenced Puttick to the statutory maximum. No error

occurred.


                                                  III.


        For these reasons, we affirm.




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