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United States v. Barnes

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ARGUED JANUARY 20, 2010

Before FLAUM, KANNE, and EVANS, Circuit Judges.

On May 24, 2006, defendant-appellant, Marlyn Barnes, was indicted, along with Melvin Taylor, Michael Alexander, Theodis Armstead, Herbert Hightower, and Vernell Brown, for conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Barnes was also indicted for carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In February of 2008, a jury found Barnes guilty on both counts. For the purpose of sentencing, the district court found that the conspiracy involved forty kilograms of cocaine, making Barnes’s base offense level 34. Barnes appeals the district court’s sentence on the grounds that the district court improperly rejected a stipulation by the parties that the conspiracy involved five-to-fifteen kilograms of cocaine, which would have resulted in a base offense level of 32, and that the evidence the district court relied on in rejecting that stipulation was unreliable.For the reasons set forth below, we vacate the district court’s sentence and remand for re-sentencing.

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