United States v. Barnes
| Decision Date | 25 October 2011 |
| Docket Number | Nos. 11–1261,11–1602.,s. 11–1261 |
| Citation | 660 F.3d 1000 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Marlyn J. BARNES and Melvin B. Taylor, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Tina L. Nommay (argued), Attorney, Office of the United States Attorney, Fort Wayne, IN, for Plaintiff–Appellee.
Christopher G. Ward (argued), Attorney, Foley & Lardner, LLP, Chicago, IL, for Defendant–Appellant in No. 11–1261.
Stanley L. Campbell (argued), Attorney, Fort Wayne, IN, for Defendant–Appellant in No. 11–1602.
Before FLAUM, KANNE, and HAMILTON, Circuit Judges.
Upon re-sentencing, a district court judge respectively sentenced Marlyn Barnes and Melvin Taylor to 292 months and 188 months of imprisonment for conspiring to possess with intent to distribute more than five kilograms of cocaine. In a successive appeal before this Court, Barnes and Taylor challenge those sentences. They argue that, in light of the Supreme Court's recent decision in Pepper v. United States, ––– U.S. ––––, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), the district court did not properly entertain new arguments when it re-sentenced them. They also advance that the district court abused its discretion by re-sentencing them to the same number of months to which it sentenced them originally. Notably, these new sentences remain within Guideline range.
We affirm the judgment of the district court.
Barnes and Taylor, with four other men, conspired to steal a shipment of drugs from a stash house in Fort Wayne, Indiana. They learned about their intended target from a confidential informant for the government, which had concocted the shipment and instructed its informant to provide Barnes and Taylor with the fictional details. In reality, no such shipment existed.
Unaware of the government's involvement, Barnes and Taylor persisted in their planning and, ultimately, procured the necessary equipment and weaponry to execute the theft. The government arrested them and their associates on May 5, 2006, as they arrived at a storage facility to pick up a van they intended to use in the heist.
Upon searching the men and their vehicles, the government uncovered two bullet-resistant vests, a Keltec automatic rifle, magazines and twenty-three rounds of ammunition for the Keltec rifle, a stolen Norinco assault rifle, a 75–round magazine and ninety-nine additional rounds of ammunition for the Norinco rifle, a loaded nine-millimeter pistol, thirty-six rounds of nine-millimeter ammunition, a loaded .40–caliber pistol, forty-six rounds of .40–caliber ammunition, and three additional 12–round magazines.
The government indicted Barnes, Taylor, and their co-conspirators on May 24, 2006. It charged all six participants with conspiring to possess with intent to distribute more than five kilograms of cocaine, 21 U.S.C. § 846. It also charged Barnes and Taylor with possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c).
Barnes, Taylor, and two of their co-conspirators proceeded to trial. The original proceeding resulted in a mistrial because Barnes offered to testify on behalf of Taylor and the other two co-conspirators. The district court accordingly severed the defendants' trials, at which time the two remaining co-conspirators pled guilty.
Barnes and Taylor continued to trial. A jury convicted Barnes on the conspiracy and gun counts. In a separate trial, a jury convicted Taylor on both counts as well. In each trial, the juries found by special verdict that the amount of drugs involved in the conspiracy exceeded five kilograms of cocaine.
As it sentenced Barnes and Taylor's four co-conspirators, the district court found that the conspiracy involved five-to-fifteen kilograms of cocaine. It, thus, calculated their base offense levels at 32.
The initial pre-sentence report for Barnes similarly recommended a base offense level of 32, treating the conspiracy as involving five-to-fifteen kilograms of drugs. However, the probation officer revised the pre-sentence report to reflect a drug quantity of forty kilograms. Barnes objected to this quantity.
The district court ordered further briefing on the drug amount, but, rather than file additional materials, Barnes and the government stipulated that the conspiracy involved five-to-fifteen kilograms.
At sentencing, the district court rejected this stipulation and found that the conspiracy involved forty kilograms of cocaine. This finding raised Barnes' base offense level to 34. The district court refused to accept the stipulation because it viewed itself as unconstrained by the factual findings in the co-conspirators' sentencing proceedings. It wished to issue an independent finding on the quantity of drugs for which Barnes was responsible. Yet, the district court also chose to sentence Barnes at the low end of his Guideline range because, it reasoned, there was no reason to treat him differently than his co-conspirators with regard to the amount of drugs involved. Once his enhancements were considered, the court sentenced Barnes to 292 months.
Barnes appealed, contesting the district court's finding that, for him, the conspiracy involved forty kilograms of cocaine and not five-to-fifteen kilograms. This Court agreed that such unjustified, disparate treatment among co-conspirators was clear error. We vacated Barnes' sentence and remanded to the district court for re-sentencing.
Taylor's pre-sentence report recommended that the conspiracy involved forty kilograms of cocaine. Taylor objected to this amount and suggested that the conspiracy involved five-to-fifteen kilograms. At sentencing, the district court overruled Taylor's objection and found that the amount of cocaine involved was forty kilograms. It, therefore, calculated his base offense level as 34. Enhancements raised his base offense level to 36, resulting in an advisory Guideline range of 188 to 235 months of incarceration.
To minimize potentially unequal treatment of the co-conspirators based upon drug quantity, the district court sentenced Taylor to the low end of his Guideline range. He received a 188–month sentence.
Taylor appealed, alleging that the district court committed clear error when it determined that the amount of cocaine attributable to the conspiracy was forty kilograms. This Court agreed, again viewing as unacceptable the inconsistent factual finding on the amount of drugs involved. As we did in Barnes' case, we vacated Taylor's conviction and remanded his case for re-sentencing.
Upon re-sentencing, the district court dismissed as waived or beyond the scope of remand all new arguments raised by Barnes and Taylor.
In our opinion on Barnes' first appeal, we addressed only his argument that the lower court erred in rejecting the parties' stipulation that the conspiracy involved five-to-fifteen kilograms of cocaine. United States v. Barnes, 602 F.3d 790, 792, 796 (7th Cir.2010) (). We agreed with Barnes' argument, holding that “[w]ithout any justification for why one co-conspirator is responsible for a greater quantity of drugs than his fellow co-conspirators, such a discrepancy in factual findings is clearly erroneous.” Id. at 796. We vacated his sentence and generally remanded his case for re-sentencing. Id. at 797 ().
On remand, the district court interpreted our opinion as an order to “resolve the discrepancy in factual findings” used when it sentenced Barnes. The district court understood this discrepancy to be its “incongruou[s] reject [ion] [of] the parties' post-trial joint stipulation that the conspiracy involved between 5 and 15 kilograms of cocaine....” The district court re-sentenced Barnes using the post-trial stipulation to calculate his Guideline range. It sentenced Barnes anew to 292 months of imprisonment for the conspiracy count of the indictment.
At re-sentencing, the district court dismissed as waived several new arguments Barnes raised in his post-remand sentencing brief. Barnes asked the court to disregard the parties' stipulation that the conspiracy involved between five-to-fifteen kilograms and, instead, treat the drug quantity at issue as less than 25 grams. He felt the larger drug quantity overstated his criminality. He additionally argued that, due to the fictitious nature of the drugs and the government's ability to dictate the amount, the court should treat the amount of drugs involved as zero grams or find that he could not have completed the conspiracy. Finally, he requested that the court reconsider his four-level enhancement for being an organizer or leader of five or more participants in the commission of an offense, as well as his two-level enhancement for willful obstruction of justice.
The court rejected Barnes' argument that the amount of drugs involved should be considered less than the amount to which his co-conspirators stipulated because “[the argument] d[id] not appear to have been ... raised on appeal, and the Court of Appeals did not explicitly discuss it.” The court also noted that even if the argument were not waived, it “would not find it to have any merit.”
The court similarly disregarded Barnes' subsidiary argument that he was incapable of producing any drug amount. The court found that this argument, too, “was not raised on appeal and [w]as outside the scope of remand.” As before, the court elaborated that “had the issue been properly raised, and remanded for [its]...
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