United States v. McKenzie

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 10-3103 & 10-3205

U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.

JAMES McK ENZIE and M ARIO B ARBER,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 720—Virginia M. Kendall, Judge.

A RGUED JUNE 7, 2011—D ECIDED S EPTEMBER 1, 2011

Before EASTERBROOK, Chief Judge, and BAUER and
W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. On November 6, 2008, a federal
grand jury returned a multi-count indictment against
defendants James McKenzie and Mario Barber, charging
(1) conspiracy to possess with intent to distribute mix-
tures containing in excess of five kilograms of cocaine,
in violation of 21 U.S.C. § 846, and (2) knowingly pos-
sessing and carrying firearms in furtherance of a drug
2 Nos. 10-3103 & 10-3205

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
and (c)(2). McKenzie entered a plea of guilty on
both counts and Barber entered a plea of guilty as to the
firearms count. On August 18, 2010, the district court
sentenced Barber to 120 months’ imprisonment and
supervised release. On August 27, 2010, McKenzie was
sentenced to 200 months’ imprisonment and 5 years of
supervised release. The defendants now appeal their
sentences. For the following reasons, we affirm.

I. BACKGROUND
McKenzie and Barber were two of four individuals
arrested on September 9, 2008 as part of an undercover
sting operation involving the planned armed robbery of
a drug stash house. On July 1, 2008, co-defendant Tony
Mahan met with an undercover agent posing as a drug
courier to learn the details of the planned robbery. In a
recorded conversation, the agent said he transported
approximately five kilograms of cocaine per month for
a Mexican drug trafficking organization. He said he
was unhappy with the organization and needed a crew
to help him rob the stash house. He described that
the house typically had three men inside and that he
usually saw twenty to thirty kilograms of cocaine being
prepared for distribution there. Mahan told the agent
he could put together a team of four with multiple
firearms to help carry out the robbery and then
recruited McKenzie and Barber to help.
On July 22, 2008, the agent met with Mahan and the
defendants and discussed at length various methods of
Nos. 10-3103 & 10-3205 3

carrying out the robbery. He relayed the same informa-
tion he had previously told Mahan to McKenzie and
Barber and they said they wanted to participate.
On the date of their arrest, September 9, 2008, the
defendants waited in a parking lot for a call telling them
the location of the stash house. Barber and McKenzie
arrived separately, Barber with a firearm. At one point,
they entered the agent’s car and the agent confirmed
the details of the plan they thought they were about to
execute. Specifically, he asked whether everyone present
was aware that they were going to invade a home sus-
pected of containing twenty kilograms of cocaine, armed
with firearms; no one expressed reservations and,
shortly after, the defendants were taken into custody.
Following their arrest, a loaded .357 revolver was found
underneath Barber’s seat in the car in which he arrived,
a loaded .357 semi-automatic pistol was found under-
neath McKenzie’s seat, and a ballistic vest and latex
gloves were found on McKenzie’s person.
As part of the factual basis for his plea agreement,
McKenzie admitted (1) that between July and Septem-
ber 2008, he conspired with Barber and others to carry
out the robbery of a drug stash house containing cocaine,
(2) that he had participated in the July 22 and September 9
conversations detailed above, (3) that on the date of
the planned robbery, he had armed himself with a
.357 semi-automatic pistol to be used in the robbery, and
(4) that on the date of the planned robbery, he had worn
a ballistic vest. As part of the factual basis for Barber’s
plea agreement, Barber admitted his involvement from
4 Nos. 10-3103 & 10-3205

July to September, 2008 in the conspiracy and his partic-
ipation in the July 22 and September 9 conversations. He
further admitted that he and his co-conspirators had
brought three firearms with them on the date of the
planned robbery, including Barber’s own loaded .357
Magnum revolver.
A presentence report (“PSR”) calculated each de-
fendant’s base offense level under § 2 D1.1 of the Federal
Sentencing Guidelines (the “Guidelines”) at 34 for the
type and quantity of drugs involved. Barber had 3 points
subtracted for acceptance of responsibility, bringing
his total offense level to 31. McKenzie had 2 points
added for obstruction because the probation officer
concluded he had lied during a suppression hearing,
bringing his total offense level to 36.
At sentencing, each defendant disputed the amount
of cocaine for which he should be held accountable
under the Guidelines. The district court reviewed tran-
scripts of the recorded conversations and concluded that
the general understanding was that the defendants ex-
pected to recover twenty kilograms or more of cocaine
from the stash house on the planned date of the robbery.
This was consistent with a base Guidelines level of 34,
which covers drug quantities of at least fifteen, but less
than fifty kilograms of cocaine. After reviewing the
factors that must be considered in determining an ap-
propriate sentence under 18 U.S.C. § 3553, the sentences
described above were imposed.
Nos. 10-3103 & 10-3205 5

II. DISCUSSION
We review a district court’s interpretation of the Guide-
lines de novo and its findings of fact for clear error. United
States v. Melendez, 467 F.3d 606, 607 (7th Cir. 2006).
The defendants challenge their sentences based on
the district court’s finding that the amount of cocaine
involved in the planned robbery was at least twenty
kilograms, producing a base Guidelines level of 34.
The amount of drugs involved in a conspiracy is a
factual question to be reviewed under the “clearly er-
roneous” standard. United States v. Cochran, 955 F.2d
1116, 1124 (7th Cir. 1992). The defendants argue that the
district judge’s finding was clearly erroneous because
the conspiracy to rob the stash house was not predicated
on there being any precise amount of cocaine in the
house. Though the figure “twenty kilograms” came up
on more than one occasion in the recorded conversa-
tions, they argue this was not enough to hold them to
such a quantity in computing each defendant’s Guide-
lines range.
As this court held in Cochran, “[a] defendant is respon-
sible for the amount of drugs that he knew, or should
reasonably have foreseen, was the object of the conspir-
acy.” Id. Though we have no reason to doubt the defen-
dants’ contention that the precise amount of drugs to
be seized in the robbery was not a determining factor
in each defendant’s decision to join the conspiracy, it is
undeniable that all were under the impression that a
vast quantity of drugs would be discovered at the
fictitious stash house. On three separate occasions,
6 Nos. 10-3103 & 10-3205

the agent involved in the undercover operation told
members of the conspiracy that the house typically con-
tained at least twenty kilos of cocaine; two of these
times, both of the defendants who now appeal their
sentences were present. We believe this evidence is suf-
ficient to meet the “reasonably foreseeable” standard.
Accordingly, we cannot find that the district judge
erred in relying on recorded statements to this effect.
The defendants argue that we should adopt an “agreed
upon quantity” standard in determining the amount of
drugs for which a conspirator may be held liable at sen-
tencing. However, the “reasonably foreseeable” standard
is well-established and we decline to stray from it. They
also argue that the district court (1) failed to articulate
the applicable legal standard when it ruled on the
drug quantity attributable to the defendants and
(2) failed to conduct an individual assessment of
whether the drug quantity was foreseeable to each de-
fendant. These arguments are wholly without merit. At
Barber’s sentencing hearing, the district judge clearly
referenced “reasonable foreseeability as to [the amount
of drugs]” the defendants expected to find at the stash
house. Given that both defendants have acknowledged
their participation in conversations where the quantity
of drugs at the fictitious stash house was discussed,
there is nothing unique to effect either defendant’s under-
standing of the scale of the plan to consider.
In closing, we echo the district judge’s concern that “the
weight of the guideline sentence is significantly based
upon law enforcement’s creation of [the twenty kilogram
Nos. 10-3103 & 10-3205 7

amount] being in [the] stash house.” The crime proposed
was, in the district judge’s words, a “massive” one; it is
somewhat baffling, then, that the young men who the
authorities recruited did not have “massive” criminal
histories to match.1 That said, the defendants’ willingness
and desire to participate in a crime of such magnitude
was unequivocal. Furthermore, the district judge ad-
dressed the discomforting factor of the government’s
role in determining the severity of the Guidelines level
to be applied by mitigating the defendants’ sentences.
Barber’s sentence of 120 months’ imprisonment was
within the Guidelines range the PSR calculated for his
stipulated behavior even without accounting for the
firearm offense, which increased the range from 108 to
135 months to 168 to 195 months. McKenzie’s sentence
of 200 months’ imprisonment was within a Guide-
lines range the district court calculated to be 168 to
210 months, a sharp decrease from the PSR calculation of
262 to 327 months.2
The defendants do not challenge their sentences as
substantively unreasonable. Having found that the
district judge did not err in ruling that the defendants
could reasonably foresee robbing at least twenty kilo-

1
Barber had one criminal history point for a weapons charge
and no prior robbery convictions. McKenzie had a juvenile
history with drugs and an adult criminal history which the
district judge found had been “overrepresented” in the PSR.
2
This reduction was based on the court’s finding that
McKenzie’s adult criminal history had been exaggerated.
8 Nos. 10-3103 & 10-3205

grams of cocaine from the fictitious stash house, there
is nothing more for us to consider.

III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.

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