F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 8 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 00-5097
(D.C. No. 99-CR-31-C)
LARRY WAYNE BARNES, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MCWILLIAMS, and KELLY, Circuit Judges.
Defendant-Appellant Larry Barnes, Jr., appeals from his sentence imposed
by the district court. On January 7, 1999, Mr. Barnes was found in possession of
chemicals, glassware, and other items which he intended to use to manufacture
methamphetamine. I R. doc. 62, at 5. He pled guilty to one count of possession
of materials used in the manufacture of methamphetamine in violation of 21
U.S.C. § 843(a)(6). I R. doc. 84, at 1. Mr. Barnes appeals from the government’s
alleged breach of a stipulation in the plea agreement. Our jurisdiction arises
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
under 28 U.S.C. § 1291, and we affirm.
Mr. Barnes’ presentence report included as relevant conduct his possession
of over three kilograms of methamphetamine and eleven grams of marijuana
between 1997 and March 1999. II R. at 11-12. In a subsequent stipulation, Mr.
Barnes and the government agreed that “the drug quantities relevant to
Defendants’ [sic] conduct and the instant offense on January 7, 1999 involve
more than 50 G but less than 200 G of Methamphetamine or at least 10G but less
than 40G of Methamphetamine (actual).” I R. doc. 82, at 1. At the sentencing
hearing, Mr. Barnes and the government disagreed as to the meaning of the
stipulation. Mr. Barnes construed the stipulation as limiting relevant conduct to
the methamphetamine in Mr. Barnes’ possession on January 7, 1999. III R. at 4,
7. In stark contrast, the government narrowly construed the stipulation to limit
only the quantity of methamphetamine involved in the instant offense. Id. at 5.
Rather than rely upon the stipulation, the district court independently exercised its
discretion to determine relevant conduct. Id. at 8-9. The court agreed with the
government that relevant conduct included Mr. Barnes’ possession of marijuana
and methamphetamine between 1997 and March 1999, id. at 9, and adopted the
presentence report’s recommended sentence of 120 months imprisonment and
three years supervised release. Id. at 12-13.
On appeal, Mr. Barnes argues that the government breached the stipulation.
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He asserts that he could have received a shorter sentence had the government
honored the stipulation. We disagree. The parties executed the stipulation with
the understanding that it was not binding upon the district court. I R. doc. 62, at
10-11; doc. 82, at 1-2. At sentencing, the district court was aware that it was not
bound by the stipulation, and exercised its discretion to independently determine
relevant conduct. III R. doc. at 8-9. Accordingly, even if we agreed that the
government breached the stipulation, the breach was harmless error. See United
States v. Belt, 89 F.3d 710, 713 (10th Cir. 1996).
This is not to say that we condone the government’s conduct at sentencing.
Indeed, the government’s construction of the stipulation at sentencing bordered on
the disingenuous. We remind the government that it is required to act in good
faith and fulfill all promises it makes in exchange for a plea of guilty. See United
States v. Brye, 146 F.3d 1207, 1209-10 (10th Cir. 1998).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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