7th Circuit addresses post-trial factual stipulation

The 7th Circuit Court of Appeals addressed an issue of first impression today about whether a District Court may disregard a post-trial factual stipulation between the defendant and the government regarding the amount of drugs for sentencing purposes.

The District Court has authority to reject a factual stipulation in a plea agreement, but there isn't a similar statutory grant of authority to disregard factual stipulations outside of plea agreements. The Circuit judges interpreted the absence of explicit instruction on how to deal with post-trial stipulations of fact to mean that they should be treated as any other stipulation of fact, and grant the fact-finder the same authority to accept or reject the stipulation.

The issue arose in United States of America v. Marlyn J. Barnes, No. 09-2052, in which Marlyn Barnes appealed his 292-month sentence for conspiracy to possess with intent to distribute more than 5 kilograms of cocaine, and for carrying a firearm during and in relation to a drug-trafficking crime.

The conspiracy involved a fake shipment of drugs that would be going to Fort Wayne. A confidential government informant and an undercover agent were among those involved in planning how to steal this fake shipment of drugs. Although the specific amount of drugs involved was never mentioned, Barnes guessed it would be at least 40 kilograms, maybe even 80 kilograms.

When the group of conspirators arrived at a storage facility to begin the heist, they were arrested. Most of the defendants pleaded guilty and were sentenced based on a conspiracy that involved 5 to 15 kilograms. Barnes went to trial and was found guilty, but the District Court sentenced him based on 40 kilograms. The District judge rejected the stipulation that the quantity was 5 to 15 kilograms. The higher amount of drugs resulted in Barnes having a higher base offense level than those who pleaded guilty, but he was sentenced on the low end of the guidelines. His 292-month sentence was within the guidelines for the base level offense of those who pleaded guilty.

The District judge found Barnes' stipulation wasn't supported by evidence from trial, but never questioned the stipulation between the government and the defendants who received sentences based on 5 to 15 kilograms. The District judge also never explained why she treated the defendants differently with regard to the finding of the amount of drugs although she said Barnes was 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 quantity of drugs than his fellow co-conspirators, such a discrepancy in factual findings is clearly erroneous," wrote Judge Joel Flaum.

The Circuit judges reversed Barnes' sentence and remanded for re-sentencing.