United States v. Mankowski ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4383
ERIC MANKOWSKI,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4410
GENNARO PULICE, a/k/a Jerry,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-95-30)
Submitted: February 28, 1997
Decided: April 16, 1997
Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
William E. Galloway, GALLOWAY & TAYLOR, Weirton, West
Virginia; William C. Gallagher, CASSIDY, MYERS, COGAN, VOE-
GELIN & TENNANT, L.C., Wheeling, West Virginia, for Appel-
lants. William D. Wilmoth, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gennaro Pulice appeals from his sentence imposed for violation of
21 U.S.C. §§ 843(b), 846 (1994); 18 U.S.C.§§ 2, 894, 1952(a)(3)
(1994). We affirm.
Pulice contends that his prior conviction for contributing to the
delinquency of a minor is sufficiently similar to the offense of Non-
support that it should not have been used to determine his criminal
history score under United States Sentencing Commission, Guidelines
Manual, § 4A1.2(c)(1) (Nov. 1995). We find that these two offenses
are not similar and therefore find no error in the district court's con-
sideration of the prior offense in calculating Pulice's criminal history
score. Accordingly, we affirm.
Eric Mankowski appeals from his sentence imposed for violation
of 21 U.S.C. §§ 841(a)(1), 844 (1994). We affirm.
Mankowski contends that the district court violated his Sixth
Amendment right to a jury trial by using conduct of which he had
been acquitted in setting his offense level through use of the Guide-
lines' relevant conduct provisions. Mankowski essentially relies on
two Ninth Circuit cases to support his argument that an acquittal
translates into a verdict of innocent and therefore renders the use of
such conduct in the calculation of his offense level unconstitutional.
These cases are United States v. Putra, 78 F.3d 1386 (9th Cir. 1996),
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and United States v. Watts, 67 F.3d 790 (9th Cir. 1995). Both of these
cases have recently been reversed by the Supreme Court. See United
States v. Watts, ___ U.S. ___, 65 U.S.L.W. 3452 (U.S. Jan. 6, 1997)
(No. 95-1906). In Watts the Supreme Court held that a court may con-
sider conduct of which a defendant has been acquitted in determining
his offense level because an acquittal does not establish that a defen-
dant is innocent of the charged offense, but rather that there was
insufficient evidence to establish his guilt beyond a reasonable doubt.
We therefore affirm Mankowski's sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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