Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 01, 2009

Barner: Prosecutor misled court on reasons for not giving 5K1.1 reduction

In U.S. v. Barner, No. 08-10080 (June 29, 2009), the Court affirmed the conviction of a defendant charged with possession of ecstasy, but reversed the sentence.
The Court rejected Barner’s claim that statements were obtained from him in violation of Miranda. The Court found that even though one statement was obtained while Barner was in jail, Barner himself initiated the discussion, and was not compelled to do so.
The Court also rejected Barner’s challenge to the use of statements he made during a "drive-around" Atlanta identifying locations of his past home invasions, finding this evidence was not of significance to the ultimate ecstasy distribution conviction.
Turning to sentencing, the Court rejected the government’s argument that any error in the sentencing guidelines calculation was harmless. The Court found that the district court did not clearly state that it would have imposed the same sentence under § 3553(a). Further, the district court imposed a sentence within the guidelines, and an error in applying the guidelines cannot be said to be harmless, even under § 3553(a).
The Court found two errors in the calculation of the sentence. First, the district court was misled by the prosecutor regarding the reasons for its withdrawal of a promised § 5K1.1 substantial assistance motion for sentence reduction. These statements may have caused the district court to sentence based on clearly erroneous facts.
Second, the court incorrectly denied an acceptance of responsibility sentence reduction, even though Barner proceeded to trial. Barner had cooperated with law enforcement, and had offered to plead guilty to the only count of a ten-count indictment for which he was subsequently convicted.
However, the Court affirmed sentence enhancements, including assigning criminal history points based on a prior Georgia conviction. The Court pointed out that this conviction was considered a prior conviction under Georgia law.