U.S. v. Barnes
| Decision Date | 17 May 1993 |
| Docket Number | 91-50835,Nos. 91-50421,s. 91-50421 |
| Citation | 993 F.2d 680 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William T. BARNES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerald W. Newton, Santa Monica, CA, for defendant-appellant.
Alan G. Dahle, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before SCHROEDER, THOMPSON, and O'SCANNLAIN, Circuit Judges.
In this drug conspiracy case involving a "reverse sting," we must decide whether, for sentencing purposes, the government or the defendant bears the burden of proving facts relevant to determining the object of the conspiracy.
Barnes negotiated on behalf of his codefendants and himself for the purchase of fifty kilograms of cocaine from undercover government agents. The transaction was to be consummated in two stages, with Barnes supplying $350,000 in cash in exchange for twenty-five kilograms on each of two consecutive days. On the first day, Barnes brought only $200,000 of the agreed-upon $350,000, but the government apparently allowed him to take possession of the entire twenty-five kilograms. After he took possession of the car containing the cocaine, Barnes and his codefendants were arrested.
Barnes pleaded guilty to one count of conspiracy with the intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and was sentenced under the Sentencing Guidelines to 240 months in prison followed by 5 years supervised release. He appeals his sentence, arguing that the district court improperly based his offense level on the amount of cocaine that he had agreed to purchase instead of the amount that had been delivered. Further, he argues that the district court erred in finding that he was an "organizer or leader" of the criminal enterprise and thus improperly enhanced his offense level. We consider each argument in turn.
Barnes was sentenced under U.S.S.G. § 2D1.4(a), which provides:
Base Offense Level: If a defendant is convicted of a conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.
Application note 1 to U.S.S.G. § 2D1.4(a) provides in relevant part:
If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.
The district court found that the object of the conspiracy was the entire fifty kilograms for which the parties had negotiated, and set the base offense level at 36.
At oral argument, Barnes maintained that he had not negotiated to buy fifty kilograms. Barnes, however, is foreclosed from making this argument. Count one of the indictment alleges that "on or about March 27, 1990 ... Barnes told [the] Drug Enforcement Administration (DEA) undercover agent ... that he wanted to buy fifty kilograms of cocaine." Further, the indictment alleges that "on or about May 20, 1990 ... Barnes told the undercover agent that he would buy fifty kilograms for $14,000 per kilogram." In pleading guilty to this count, Barnes conceded that the amount under negotiation was fifty kilograms.
Barnes argues that even if the amount under negotiation was fifty kilograms, only twenty-five kilograms should be included in the calculation because he was not reasonably capable of producing the $500,000 that it would have taken to buy the remaining twenty-five kilograms of cocaine. Instead, according to Barnes, he was merely "puffing" in negotiating for fifty kilograms. 1
The government contends that this argument was also foreclosed by Barnes' guilty plea. We reject this contention. Although the indictment clearly indicated that, as one of the overt acts in furtherance of the conspiracy, Barnes had negotiated for fifty kilograms, it does not explicitly state that the object of the conspiracy between Barnes and his codefendants was fifty kilograms. Instead, the object of the conspiracy was defined in the indictment as the violation of section 841(a)(1), without reference to any specific amount. Thus, determining the object of the conspiracy was a task for the district court upon sentencing. Although Barnes conceded that the negotiated amount was fifty kilograms, the negotiated amount must not be included where "the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount." U.S.S.G. § 2D1.4 application note 1.
The district court concluded that Barnes had not proven that he could not have produced the additional $500,000. The government, however, presented no evidence that he was capable of producing the money. In reaching its conclusion, the court implicitly assigned the burden of proof to the defendant.
We have never addressed whether the defendant bears the burden of proving lack of intent and capability to produce. We emphasize that the government bears the burden of proving the amount under negotiation. Some courts have held once that burden is met that the government also bears the burden of proving that the defendant intends to produce and is capable of producing the negotiated amount of drugs or money before the district court can include the entire negotiated amount in the offense level calculation. See United States v. Bradley, 917 F.2d 601, 604-05 (1st Cir.1990) (); United States v. Ruiz, 932 F.2d 1174, 1183-84 (7th Cir.) (same), cert. denied, --- U.S. ----, 112 S.Ct. 151, 116 L.Ed.2d 116 (1991); see also United States v. Richardson, 939 F.2d 135, 142-43 (4th Cir.) (burden implicitly on government; court refused to include the amount under negotiation because there was nothing in the record to indicate that the defendant was reasonably capable of producing the cocaine), cert. denied, --- U.S. ----, 112 S.Ct. 599, 116 L.Ed.2d 623 (1991).
The Sixth Circuit, in contrast, has held that "once the government satisfies its burden in establishing a negotiated amount, the defendants have the burden of proving they were not capable of producing that amount." United States v. Christian, 942 F.2d 363, 368 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 905, 116 L.Ed.2d 806 (1992); accord United States v. Rodriguez, 896 F.2d 1031, 1033 (6th Cir.1990); see also United States v. Candito, 892 F.2d 182, 186 (2d Cir.1989) (). We agree with this approach. "[T]he burden of proof at sentencing falls on the party seeking to adjust the offense level." United States v. Howard, 894 F.2d 1085, 1089 (9th Cir.1990) (). "[T]he government bears the burden of proof if it is attempting to adjust the offense level upwards, but the defendant bears the burden of proof if he is attempting to lower the offense level." Id. Thus, the government bears the burden of proving aggravating factors; the defendant, mitigating factors. Although intent and ability to produce are neither clearly aggravating nor mitigating factors, an analysis of the language of the application note leads to the conclusion that combined these are more properly characterized as a mitigating factor for which the defendant bears the burden. As quoted supra, the note states: "However, where the court finds that the defendant ... was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the [excess amount]." U.S.S.G. § 2D1.4 application note 1. This language indicates that the baseline is the inclusion of the entire negotiated amount; it is only when the district court affirmatively makes the finding that the offense level is lowered. Placing the burden on the defendant is thus consistent with the general rule that the defendant bears the burden of proving elements that have the effect of lowering the offense level.
Further, the fact that the language of the application note requires the court to make a finding in the defendant's favor before excluding the negotiated amount seems to suggest that the burden is on the defendant to produce evidence sufficient to support such a finding. Indeed, the language of the statute does not require the court to make a finding in favor of the government--i.e., that the defendant is reasonably capable of producing the negotiated amount--before the negotiated amount can be included in the calculation. The finding requirement indicates that when the evidence is in equipoise the government prevails.
Finally, the fact that the defendant may be better able to come forward with evidence tending to prove that he or she was not capable of producing the money lends support to characterizing this as a mitigating factor. Rodriguez, 896 F.2d at 1033.
In sum, we conclude that the district court properly assigned the burden of proof to the defendant. The district court did...
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