United States of America, Plaintiff-appellee, v. Billy Phifer, Defendant-appellant, 979 F.2d 852 (6th Cir. 1992)

Defendant, Billy Phifer, appeals the sentence imposed as the result of his conviction on Count 2 of the indictment, contending that the district court improperly considered as relevant conduct the quantity of cocaine involved in Count 1. Defendant was acquitted on that count.

Because this issue was decided adversely to defendant's cause by another panel of this court in United States v. Moreno, 933 F.2d 362, 374 (6th Cir.), cert. denied, 112 S. Ct. 265 (1991), that holding is dispositive of this appeal.

Defendant's attempt to distinguish this case from Moreno on the basis that he here asserted the defense of entrapment is unavailing. Since no special interrogatories were posed to the jury, defendant is unable to demonstrate that the jury acquitted him on Count 1 on the basis of that defense, as opposed to, for example, a failure by the government to prove that count beyond a reasonable doubt.

Accordingly, the judgments of conviction and sentence are affirmed.