In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2052
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARLYN J. B ARNES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 06 CR 00023—Theresa L. Springmann, Judge.
A RGUED JANUARY 20, 2010—D ECIDED A PRIL 8, 2010
Before F LAUM, K ANNE, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. On May 24, 2006, defendant-
appellant, Marlyn Barnes, was indicted, along with
Melvin Taylor, Michael Alexander, Theodis Armstead,
Herbert Hightower, and Vernell Brown, for conspiracy
to possess with intent to distribute more than five kilo-
grams of cocaine, in violation of 21 U.S.C. § 846. Barnes
was also indicted for carrying a firearm during and
in relation to a drug trafficking crime, in violation of
2 No. 09-2052
18 U.S.C. § 924(c). In February of 2008, a jury found
Barnes guilty on both counts. For the purpose of sen-
tencing, the district court found that the conspiracy
involved forty kilograms of cocaine, making Barnes’s
base offense level 34. Barnes appeals the district
court’s sentence on the grounds that the district court
improperly rejected a stipulation by the parties that the
conspiracy involved five-to-fifteen kilograms of cocaine,
which would have resulted in a base offense level of 32,
and that the evidence the district court relied on in re-
jecting that stipulation was unreliable. For the reasons
set forth below, we vacate the district court’s sentence
and remand for re-sentencing.
I. Background
This conspiracy involved a fake shipment of drugs
traveling from Texas to Fort Wayne, Indiana. Barnes first
learned of the fake shipment from Kurt Hunter. Hunter
and Barnes had been providing each other with drugs
on a regular basis for several months prior to April of
2006. However, Barnes was unaware that Hunter was
working as a confidential informant for the government.
On April 17, 2006, Hunter and Barnes met to develop
a plan to steal a local dealer’s stash of drugs. At that
meeting, Hunter mentioned the fictional shipment of
drugs that became the core of this conspiracy. Barnes
became interested in stealing this fictional shipment
rather than carrying out the original plan. On April 23,
2006, Hunter introduced Barnes and Alexander, Barnes’s
brother, to Agent Wayne Lessner, the undercover agent
No. 09-2052 3
working with Hunter. Barnes and Alexander believed that
Hunter and Agent Lessner were couriers for the drug
shipment from Texas. Barnes met with Hunter and
Agent Lessner once more that month. Agent Lessner
recorded both meetings. Although Barnes, Hunter, and
Agent Lessner discussed the logistics of the heist at
these meetings, Hunter and Agent Lessner intentionally
never indicated the amount of drugs that would be in-
volved in the shipment because drug couriers would
not normally know that information.
With little guidance from Hunter and Agent Lessner
on the amount of drugs involved, Barnes made various
assumptions about the quantity of drugs the group
would be stealing. Many of these assumptions were
captured on the audiotapes. While discussing how much
money they could make from this heist, Barnes said,
“Whatever it is, I’ll like as far as like a good forty keys.
You know what I am saying? Gonna say 40 keys
times $18,000.” Also, while Barnes was discussing the
distribution of drugs among the heist participants, he
said, “You give me—you give me twenty keys, and my
brothers, man . . . we run this city.” At one point, Barnes’s
expectations grew from somewhere between twenty-to-
forty kilograms to eighty kilograms as indicated by his
statement, “Once we get this shit, eighty pounds, eighty
keys, whatever, you know what I am saying, its y’all
shit . . . gonna pay $15,000 for each key to y’all . . . you
know what I’m sayin, around 800 G’s with 80 keys.”
After the second meeting, Hunter and Agent Lessner
stayed in contact with Barnes, updating him on the prog-
4 No. 09-2052
ress of the fictional drug shipment, while they set up the
logistics for the fake heist and the eventual arrest of
Barnes and the people working for him. The govern-
ment arranged for two hotel rooms with surveillance
cameras at the Knights Inn in Fort Wayne, Indiana for
the nights of May 3 and May 4, 2006. Meanwhile, Barnes
was arranging things on his end. At trial, Hightower,
who had pleaded guilty and agreed to cooperate with
the government, testified that Barnes recruited him
into the conspiracy sometime during April of 2006.
Hightower also testified that Barnes told him that the
plan was to rob fifty kilograms of cocaine from a
stash house in Fort Wayne with Melvin Taylor and two
individuals Taylor recruited, Vernell Brown and Theodis
Armstead.
On May 3, 2006, Barnes, Hightower, and Jessica Pinero,
Barnes’s girlfriend, traveled from Gary, Indiana to Fort
Wayne to meet with Agent Lessner and to carry out the
heist. According to Hightower, the three stopped at Tay-
lor’s house on the way out of Gary. At Taylor’s house,
Taylor took a bag out of his car and gave it to Barnes.
Barnes then gave the bag to Hightower. Inside the bag,
Hightower saw a Keltec automatic rifle and a bullet-
proof vest. Hightower took an AK-47 from the car and
put it into the bag. On May 4, 2006, in Fort Wayne, Barnes
participated in a final planning meeting with Agent
Lessner, Hunter, Hightower, Taylor, Alexander, Armstead,
and Brown. The government introduced a videotape of
this meeting at trial. During the meeting, Agent Lessner
discussed the logistics of the heist, but intentionally
stopped short of discussing the quantity of drugs in-
No. 09-2052 5
volved. At one point Barnes asked, “how many keys is it?
Like a hundred?” Agent Lessner reiterated that he
did not know the quantity. In response to a question
from Alexander wondering if it would be at least twenty
keys, Agent Lessner told them that the drugs would be
in the fuel tank and described the fuel tank as the size
of the dresser in the room. At trial, Hightower testified
that Agent Lessner told the group that there would be
forty kilograms of cocaine, but this statement was not
on the tape and Agent Lessner testified to the contrary.
On the morning of May 5, 2006, Agent Lessner called
Barnes to tell him that everything was ready. Barnes took
the bag with the bulletproof vests and guns. Barnes and
Hightower rode with Agent Lessner in his vehicle to the
storage facility to pick up the van that they would use
the heist. Taylor, Armstead, and Brown followed in Tay-
lor’s car. Once they arrived at the storage facility, the
group was arrested.
On September 18, 2007, Barnes, Armstead, Brown, and
Taylor proceeded to trial—Alexander and Hightower
pleaded guilty prior to September 18, 2007. Early in the
trial, Armstead, Brown, and Taylor moved for a mistrial
because Barnes agreed to testify on their behalf. The
district court granted the mistrial and severed the defen-
dants’ trials. Barnes proceeded to trial alone and was
found guilty on both counts. Armstead and Brown then
pleaded guilty and Taylor proceeded to trial as the only
remaining defendant. Barnes testified at Taylor’s trial,
claiming that Taylor had no knowledge of, or involvement
in, the plan to steal the drugs. The jury found Taylor guilty.
6 No. 09-2052
All of the defendants who pleaded guilty before trial
were sentenced before Barnes, but after both trials.
For Armstead, Brown, Alexander, and Hightower, the
district court found that the conspiracy involved five-to-
fifteen kilograms of cocaine, resulting in a base offense
level of 32 for each of those defendants. In the initial
Pre-Sentence Report (“PSR”) for Barnes, the probation
officer recommended a base offense level of 32 based on
a quantity of drugs of five-to-fifteen kilograms. The
government objected to this drug calculation. Before
Barnes could respond to the objection, the probation
officer revised the PSR to reflect a drug quantity of forty
kilograms. Barnes objected to this drug quantity. After
both parties submitted sentencing position papers to the
district court, the district court ordered the government
to file further briefing to support its position on the
amount of drugs involved in the conspiracy. Rather than
file supplemental briefs, the government and Barnes
discussed the drug quantity issue and stipulated that
the quantity was five-to-fifteen kilograms. However, at
sentencing, the district court rejected this stipulation and
found that the drug quantity was forty kilograms. In
rejecting the stipulation, the district court reasoned that
the quantity of drugs calculation for Barnes should not
be impacted by the fact that Barnes’s co-defendants
were sentenced based on a factual finding that the con-
spiracy involved five-to-fifteen kilograms of cocaine. The
decision to reject the stipulation increased the base level
of the offense from 32 to 34. In its sentencing memoran-
dum, the district court relied on the following pieces
of evidence to support its finding of forty kilograms of
No. 09-2052 7
cocaine: (1) Agent Lessner’s statement in the hotel
meeting that the drugs would fill the dresser; (2) Barnes’s
statement on the audiotape of the meeting with Barnes,
Hunter, and Agent Lessner where Barnes discussed the
profits based on forty kilograms; (3) Barnes’s statement
on the audiotapes that he expected his share of the heist
to be twenty kilograms; and (4) the testimony of High-
tower that he expected to be stealing at least forty kilo-
grams. After considering the applicability of other en-
hancements, the district court assessed the proper guide-
line range to be 292 to 365 months. Had the district court
found the base level of the offense to be 32, the range
would have been 235 to 293 months. At the end of the
sentencing hearing, when considering the § 3553(a)
factors, the district court considered the discrepancy
between Barnes’s base offense level and his co-defendants’
base offense levels due to the difference in the amount
of drugs assessed at the time of sentencing. The district
court explicitly noted that there was no reason to treat
Barnes differently from his co-defendants with regard
to the amount of drugs involved in the conspiracy. There-
fore, the district court sentenced Barnes to the low end
of the guideline range—292 months. This appeal follows.
II. Discussion
Barnes argues that the district court erred in deter-
mining that the amount of cocaine attributable to the
conspiracy was forty kilograms rather than accepting the
stipulation that the conspiracy involved five-to-fifteen
kilograms of cocaine. We review a district court’s factual
8 No. 09-2052
findings regarding drug quantity for clear error. United
States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008). The gov-
ernment has the burden of proving the quantity of drugs
attributable to the defendant. United States v. Krasinski, 545
F.3d 546, 551 (7th Cir. 2008). The evidence the district
court relies on must have “sufficient indicia of reliability
to support its probable accuracy.” United States v.
Bautista, 532 F.3d 667, 672 (7th Cir. 2008).
As a preliminary matter, the government argues that
this sentence is unreviewable because it falls within the
guideline range that would have applied had the
district court found a drug quantity of five-to-fifteen
kilograms. The government relies on Emezuo v. United
States, 357 F.3d 703, 710-11 (7th Cir. 2004), to support its
position. In Emezuo, we held that some sentences should
not be reviewed because, “[i]t is reasonable to conclude
that the same sentence would have been imposed re-
gardless of which Guideline range applied when the
sentencing judge had specifically said as much at
the sentencing hearing . . . and when the district court
indicated that, if a lower sentencing range had applied,
he would have sentenced the defendant to the high end
of that range.” Id. The government relies on the fol-
lowing statement by the district court to suggest that the
reasoning from Emezuo applies here:
Barnes is similarly situated with regard to the
amount of drugs that were involved in the conspiracy,
and his advisory guideline range does not currently
take this into account. Thus a sentence at the high end
of the advisory guideline range could lead to an
No. 09-2052 9
unwarranted sentencing disparity. However, the
Court does not find that a variance from the guideline
range is warranted. Rather, the Court finds taking
into account the parties’ stipulation, a sentence at the
low end of the guideline range, which is 292 to 365
months of imprisonment is reasonable. This low end
of the sentence falls at the high end of the range that
using the stipulated amount of drugs would have
generated, which would have resulted in a range of
235 to 293 months of imprisonment, while still
taking into account the other factors, such as the
seriousness of the offense.
Contrary to the government’s position, the district court’s
language “the Court does not find that a variance from
the guideline range is warranted,” implies that the cal-
culated advisory guideline range did influence the
district court’s ultimate decision to sentence Barnes to
292 months. Although the district court discussed
the overlapping ranges, it did so only in the context of
assessing § 3553(a) factors. It did not say that it would
have applied the same sentence regardless of which
range it started with. Because the district court did not
evince a clear and unambiguous intention to give the
same sentence even if the lower guideline range
applied, we review the sentence.
Before we reach the issue of clear error, we must first
decide the legal question of whether a district court may
disregard a post-trial factual stipulation between the
defendant and the government regarding the amount of
10 No. 09-2052
drugs for sentencing purposes.1 Because of the rarity of
this situation, this specific question is a matter of first
impression for this court. As discussed in both briefs
and the district court’s sentencing opinion, there is no
question that a district court has the authority to reject
a factual stipulation in a plea agreement. See U.S.S.G.
§ 6B1.4(d) (“The court is not bound by the [plea agree-
ment] stipulation, but may, with the aid of the presen-
tence report, determine the facts relevant to sentencing”).
There is no similar statutory grant of authority to disre-
gard factual stipulations outside of plea agreements.
Barnes contends that this silence means the district court
cannot reject a post-trial stipulation of fact. However,
this absence of a specific grant of authority does not
control the district court’s authority on this issue. U.S.S.G.
§ 6B1.4 deals with stipulations of facts in plea agree-
ments generally and explicitly grants the authority to
the parties to provide the district court with stipulated
facts. No similar section of the sentencing guidelines
exists with regard to post-trial stipulations. Therefore,
unless we read this silence to mean that post-trial stipula-
tions of fact are also not authorized under the sentencing
1
The government claims that the district court did properly
consider the stipulation when it considered the § 3553(a) factors.
This argument is misguided. A district court does not consider
§ 3553(a) factors until after making a proper guideline range
determination. Therefore, the court’s consideration of the
stipulation in the § 3553(a) factors would not save the sen-
tence if we found the district court’s disregard for this stipula-
tion to be improper.
No. 09-2052 11
guidelines, we cannot read the absence of an explicit
grant of authority to disregard a post-trial stipulation as
controlling in this situation either. Instead, we interpret
the absence of explicit instruction on how to deal with
post-trial stipulations of fact to mean that we should
treat post-trial stipulations as we would any other stipula-
tion of fact, and grant the fact-finder the same authority
to accept or reject the stipulation.
Generally, stipulations are not binding on the fact-finder.
A stipulation is a contract between two parties to agree
that a certain fact is true. Analytical Engineering, Inc. v.
Baldwin Filters, Inc., 435 F.3d 443 (7th Cir. 2005). As
such, standard contract principles apply. A contract
between the prosecutor and the defendant cannot bind
a third party—the district court judge—without his
consent as well. While it is rare for the district court to
reject a post-trial stipulation between the parties, it is not
a legal error to do so. The district court in this case
found that the stipulation was not supported by the
evidence from the trial. That factual determination is an
issue we review for clear error, as we would review any
factual predicate for determining a sentencing range.
Barnes’s argument focuses on the fact that his co-defen-
dants who pleaded guilty and were sentenced before
him were sentenced based on the finding that the con-
spiracy only involved five-to-fifteen kilograms of cocaine.
At Barnes’s sentencing hearing, the district court
addressed this argument by stating, “It is not relevant
to this drug quantity finding for this defendant that
other co-defendants worked out plea agreements with
12 No. 09-2052
the government using a lesser amount of drugs.” While
that statement is technically true, it is relevant that the
district court rejected the drug amount stipulation
between Barnes and the government but accepted the
same factual stipulation between the government and
Barnes’s co-defendants who pleaded guilty. The different
treatment of the stipulations cannot be based solely on
the fact that Barnes’s co-conspirators, other than Taylor,
pleaded guilty prior to trial. Individuals who plead
guilty prior to trial receive the benefit of that decision
through certain adjustments enumerated in the sen-
tencing guidelines, see, e.g., U.S.S.G. § 3E1.1, and through
bargained-for recommendations by the government, not
through conflicting factual findings by the district court.
At Barnes’s sentencing hearing, the district court
rejected the stipulation because it found that the trial
records of Barnes and Taylor supported a finding that
the conspiracy involved forty kilograms of cocaine, not
five-to-fifteen kilograms. At oral argument, the govern-
ment justified the discrepancy in the amount of drug
calculation among the co-defendants by arguing that the
government entered into the plea agreements with the
cooperating co-defendants before certain evidence
came out at the trials of Barnes and Taylor. However, at
the sentencings of Alexander, Armstead, Brown, and
Hightower, the district court had the same factual
record before it as it did at Barnes’s sentencing. As dis-
cussed above, the district court had the authority to
disregard the factual stipulations in the plea agree-
ments for the cooperating defendants if it felt that they
were not supported by the evidence. See U.S.S.G. § 6B1.4.
No. 09-2052 13
However, the district court never questioned the stipula-
tions between the government and Armstead, Alexander,
Brown, and Hightower that the conspiracy involved five-
to-fifteen kilograms. Then, on the same factual record, the
district court rejected an identical stipulation between the
government and Barnes without explaining why it was
treating the defendants differently with regard to this
finding. In fact, when addressing the potential for sen-
tence discrepancy between similarly situated defendants
in the § 3553(a) factors analysis, the district court
compared Barnes to his co-defendants and stated,
“Mr. Barnes is similarly situated with regard to the
amount of drugs that were involved in the conspiracy.”
Such a finding is incongruous with the district court’s
decisions to accept the factual stipulations in the cases
of the cooperating co-defendants and to reject the factual
stipulation in this case. Without any justification for
why one co-conspirator is responsible for a greater quan-
tity of drugs than his fellow co-conspirators, such a
discrepancy in factual findings is clearly erroneous.
III. Conclusion
For the reasons discussed above, we V ACATE the district
court’s sentence of 292 months, and R EMAND for re-sen-
tencing.
4-8-10