than 100 kilograms of marijuana, it must indict him appropriately and then prove the elements of that offense beyond a reasonable doubt. Otherwise, the government may indict a defendant under the provision with the lowest statutory maximum sentence and then, as in this ease, rely on relevant conduct findings to achieve what it otherwise might not if held to a higher burden of proof, namely a sentence under a separate offense’s enhanced penalty provision. Of course, it is clearly permissible “for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute.” Apprendi, 120 S.Ct. at 2358; see also United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (<HOLDING>). Thus, the government may still rely upon a
holding sentencing courts may consider evidence of conduct or charges of which a defendant was acquitted holding that a sentencing court may consider acquitted conduct or uncharged criminal conduct holding that criminal conduct of which defendant is acquitted may be used as sentencing factor if proved by preponderance of the evidence holding that a district court may find acquitted conduct by a preponderance of the evidence holding that a district court may not impose a sentencing enhancement based on conduct of which the jury acquitted the defendant