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United States v. Barnes

May 20, 1996

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

MICHAEL LEROY BARNES, AND CHERYL BARNES, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 93 CR 8 Larry J. McKinney, Judge.

Before CUDAHY, FLAUM, and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED SEPTEMBER 6, 1995

DECIDED MAY 20, 1996

These consolidated appeals raise questions about the prerequisites for and consequences of guilty pleas controlled by Rule 11 of the Federal Rules of Criminal Procedure. Michael and Cheryl Barnes, husband and wife, each pleaded guilty to federal drug offenses after plea bargaining with the government. Mr. Barnes contends that his plea should be vacated because neither his lawyer, nor the prosecutor nor the judge warned him before his plea about the chief burden of his bargain -- that he would be sentenced as a career offender under the sentencing guidelines. Ms. Barnes does not dispute the validity of her plea, but she does protest its sentencing consequences. She thinks that the district court erred in imposing the sentence for which she bargained. That sentence is more severe than the sentence prescribed by the guidelines, and she thinks that the terms of a plea agreement can never supersede the prescriptions of the guidelines. For the reasons discussed below, we affirm the rulings of the district court.

I.

While Michael Barnes was imprisoned in the United States Penitentiary in Terre Haute, Indiana, he sold heroin to his fellow inmates, and he used the prison telephone to arrange heroin sales outside of the prison walls. Cheryl Barnes was his agent in the outside world, making sales in Maryland and Indiana. Officials of the Drug Enforcement Agency and the Baltimore city police used a sting operation to catch the Barneses in planning -- but not completing -- a heroin sale. After arresting Ms. Barnes, the government obtained a search warrant for her apartment where they discovered a kilogram of cocaine and a gun.

The United States indicted the Barneses in Indiana on charges of conspiracy to sell heroin, and it indicted Ms. Barnes in Maryland on a charge of cocaine possession, holding firearms charges in reserve. The indictment against Ms. Barnes was transferred to Indiana, and on January 25, 1994, she and her husband faced trial there in the district court. The trial ended the next day when the court granted a defense motion for a mistrial.

A new trial began on January 31, and, on its first day, after the jury had been selected, the Barneses both entered into plea agreements with the government. According to Mr. Barnes' plea agreement, he would plead guilty to the conspiracy charge and receive the sentence prescribed by the sentencing guidelines. Ms. Barnes agreed to plead guilty to the conspiracy and cocaine possession charges. In return, the government agreed to recommend concurrent sentences of eight years on each charge and to relinquish its right to prosecute her for the illegal possession of a firearm.

The district court immediately held change of plea hearings for Mr. and Ms. Barnes. At Mr. Barnes' hearing, the court informed him that the statutorily defined maximum sentence for his offense was life imprisonment, and it reminded him that he would be sentenced according to the guidelines. It also told him that he would be bound to his plea regardless of how the guidelines calculated his sentence. Mr. Barnes asserted that he understood the consequences of his plea, and he then asked the court and the prosecutor about the factors that would determine his sentence under the guidelines. He speculated that the relevant factors would give him a base offense level of 16 and a criminal history score of VI. Both the court and the prosecutor refused to confirm Mr. Barnes' speculation, pointing out that they did not have all of the information required to calculate his sentence under the guidelines. Mr. Barnes' attorney posited that he was certain that Mr. Barnes was correct in his estimate. Mr. Barnes then went forward with his plea.

At Ms. Barnes' change of plea hearing, the court informed her that the controlling statutes provided for minimum sentences of five and ten years on the respective charges and for maximum sentences of life imprisonment. It also told her about what would happen at her sentencing hearing if she entered her plea. At the sentencing stage, the court would consider whether the two concurrent eight-year sentences prescribed by the plea agreement were a fair punishment. If the court found that they were, it would accept the plea and the two sentences; if it found that they were not, it would reject both the plea and the sentence, sending her and the government back to the bargaining table. The court told her that in no event would she receive more than two concurrent eight-year sentences. Professing her understanding, she also went ahead with her plea.

The Barneses' complaints about their plea agreements arose when they discovered the extent of the sentences that they would face. From the presentence report, the district court learned that Mr. Barnes qualified as a career offender. This status meant that his base offense level was 34, not 16 as he had estimated. With a base offense level of 16, Mr. Barnes' sentence would have been between 46 and 57 months; with an offense level of 34, it was between 262 and 327 months. When Mr. Barnes learned of this change at his sentencing hearing, he sought to withdraw his plea, but the district court denied his request. After the court reduced his offense level by two levels because he accepted responsibility for his crime, it sentenced him to 210 months in prison and to six years of supervised release.

Ms. Barnes tried to modify her plea agreement when she discovered that her sentence would be fixed at eight years. According to her attorney, she had entered the agreement on the assumption that the eight-year prison term was a maximum and that the court could depart downward from that level if the guidelines provided for a lesser sentence. When she learned that this assumption was erroneous, she refused to sign the plea agreement, and she complained to the district court about the length of her sentence. She did not, however, want to withdraw her guilty plea to the conspiracy and cocaine possession charges. After considering this complaint, the district court reviewed the ...


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