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The 7th Circuit Court of Appeals affirmed a district court’s 25-year prison sentence for a Kokomo man convicted of drug trafficking, rejecting the man’s claims that the district court relied on hearsay and erred in applying an obstruction-of-justice enhancement to his sentence.
According to court records, sometime before the summer of 2020, law enforcement began investigating Demarrio Barker’s drug trafficking activities.
As part of this investigation, officers set up several controlled buys.
On June 22, 2020, Barker sold 109.8 grams of methamphetamine to a confidential informant.
A month later, Barker sold the confidential informant another 106.4 grams of methamphetamine.
Both drug deals took place at a secondary residence owned by Barker, which was located on East Broadway Street in Kokomo.
Barker’s primary residence was located on West Havens Street in Kokomo.
After these drug transactions, officers obtained search warrants for both Barker’s East Broadway and West Havens Street residences.
On the day of the search, officers monitored both residences in preparation of executing the warrants. At about 4:03 p.m., the officers at West Havens Street stopped Barker’s SUV from exiting the home, thinking that Barker might be in the car.
Instead, only Barker’s wife and their children were inside.
While stopped by the officers, Barker’s wife called Barker on her cell phone via the Facetime app.
This call lasted from about 4:11 to 4:14 p.m., and the officers’ body camera footage recorded Barker’s voice asking his wife whether the police had a search warrant.
After finishing the Facetime call, Barker immediately contacted Sirtorry Carr, a friend who was staying at his East Broadway Street residence.
According to phone records, Barker called Carr at 4:15 p.m. and engaged in a 51-second phone call.
Shortly thereafter, other officers who were observing the East Broadway Street residence saw Carr exit the home with a trash bag, enter an abandoned house next door, and return without the trash bag in hand.
Those officers then executed the search warrant of the East Broadway Street residence.
They also searched the nearby area where Carr had gone and recovered a trash bag containing three firearms and 464 grams of methamphetamine.
After the search, Carr was taken into custody and charged with several state law offenses. Two weeks later, he was federally indicted for possession of methamphetamine with intent to distribute and possession of a firearm as a felon.
Shortly after the indictment, Special Agent Erik Collins (who was investigating Barker’s case and had been involved in the East Broadway Street search) interviewed Carr.
Carr told Collins that the bag filled with firearms and methamphetamine belonged to Barker and that Barker had instructed him to remove the bag from the East Broadway Street residence.
After this interview, Carr pleaded guilty to the firearm count, and the government dismissed the methamphetamine count.
Barker was indicted for two counts of distributing 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a). Barker eventually pleaded guilty to the counts.
He also admitted to selling 216.2 grams of methamphetamine during the two controlled-buy drug deals in June and July 2020.
Prior to Barker’s sentencing hearing, the probation office issued a presentence investigation report that recommended no sentencing enhancements and included the 216.2 grams when determining Barker’s offense conduct and drug quantity.
The government then informed the probation office about Carr’s statements to Collins, which prompted an amended PSR.
Based on Carr’s statements, the probation office found that Barker had instructed Carr to remove the trash bag from the East Broadway residence and, thus, Barker was responsible for the three firearms and 464 grams of methamphetamine in the bag.
This finding more than tripled Barker’s drug quantity and increased his base offense level by two levels.
Under the amended PSR, Barker’s total offense level was 37, and his new guidelines range was 30 years to life imprisonment.
Before sentencing, Barker objected to several portions of the amended PSR, including the revised drug quantity, the finding that he had called Carr with instructions to remove the contraband, and the three new sentencing enhancements.
At the end of the hearing, the district court overruled Barker’s objections to the amended PSR, found that “the purpose” of Barker’s call to Carr “was to get the stash out of the house,” and adopted the PSR’s findings.
The U.S. District Court for the Southern District of Indiana sentenced Barker to an “underguidelines” sentence of 25 years of imprisonment.
Barker appealed, arguing that the district court leaned on unreliable hearsay to adopt the amended PSR’s higher drug quantity and sentencing enhancements.
He also claimed that the record does not support the obstruction of justice enhancement.
The 7th Circuit affirmed the district court’s sentence, finding no clear error in the court’s management of the sentencing hearing or making the factual findings it did and having sufficient evidence to support a finding that Barker acted willfully to obstruct justice.
Judge John Lee wrote the opinion for the court.
Lee noted that it is well established that the normal rules of evidence — including those concerning the admissibility of hearsay — do not apply at sentencing, citing United States v. Brown, 973 F.3d 667, 711 (7th Cir. 2020) and United States v. Barnes, 117 F.3d 328, 336 (7th Cir. 1997).
According to Lee, at the same time, criminal defendants have a due process right to be sentenced based on reliable information, with the judge citing United States v. Moore, 52 F.4th 697, 700 (7th Cir. 2022).
Lee wrote that the 7th Circuit saw no clear error, with the district court pointing to numerous facts strongly corroborating Carr’s story.
“Most significantly, the court emphasized the ‘tight chronology’ of the events surrounding the search of the East Broadway residence: Barker learned about a likely search warrant from his wife (as confirmed by police body camera footage), Barker then immediately called Carr for a 51-second phone call (as confirmed by phone records), and Carr quickly removed the trash bag filled with contraband from the residence (as confirmed by police surveillance),” Lee wrote.
Lee wrote that there was no doubt that Barker’s conduct in this case was obstructive: He directed Carr to remove the methamphetamine and firearms from his home, knowing that the police might soon arrive with a search warrant.
“We can think of no other explanation for Barker’s instructions besides an attempt to conceal evidence and hinder the impending search of his home. This is sufficient to support a finding that Barker acted willfully to obstruct justice,” Lee wrote.
Judges Amy St. Eve and Michael Scudder concurred.
The case is United States of America v. Demarrio Barker, 22-2131.
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