The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
On February 3, 2005, Defendant David S. Green pled guilty to an
information charging him with possession of less than 5 grams of
crack cocaine, in violation of 21 U.S.C. § 844(a). United States
Probation Officer Eric Noll prepared a pre-sentence report in
which he determined Green's advisory guideline imprisonment range
to be 0 to 6 months. Neither party objected to the pre-sentence
report. A pre-sentence conference was held on May 9, 2005.
On May 10, 2005, we issued an order in which we established a
briefing schedule on the sentencing factors set forth in
28 U.S.C. § 3553(a). At that point we intended to consider the
parties' briefs, schedule Green's sentencing, and proceed
directly to sentencing. However, the sentencing briefs submitted
by the parties indicated that material facts were in dispute. On
July 18, 2005, we issued an order in which we required the
government to file a sur-reply brief concerning the disputed
facts, and we allowed the parties an opportunity to file a motion for a pre-sentence hearing to resolve any factual disputes.
On August 8, 2005, the government timely filed a motion for a
pre-sentence hearing. On August 10, 2005, we issued an order
scheduling the hearing for September 23, 2005. The hearing
occurred on that date. During the hearing we issued an order
allowing the parties until September 28, 2005, to file annotated
proposed findings of fact and conclusions of law. The parties'
timely filed those proposed findings and conclusions.*fn1
The following are the Court's findings of fact, discussion, and
conclusions of law. Findings of fact which are not disputed are
noted with a "U" in parenthesis after each such finding. Findings
of fact which are not disputed yet are objected to by one party
are noted with a "U/O" in parenthesis after each such
1. Shortly after 1:00 a.m. on September 18, 2004,
Williamsport Police Officers Jason Bolt and Roy
Snyder stopped a vehicle on Hepburn Street just north
of West Third Street in Williamsport, Pennsylvania, for
failing to stop at a flashing red light at the corner
of Hepburn Street and West Third Street. (U)
2. The vehicle was heading north on Hepburn Street.
3. The vehicle was driven by Haisson Williams. (U)
4. Eddie J. Billingsley was in the front passenger
5. Seated in the rear, behind the front passenger was
David Green. (U)
6. The traffic stop occurred during Hurricane Ivan
and throughout the entire stop there was heavy rain.
7. The police cruiser which had stopped the
Defendants' vehicle on September 18, 2004, was
equipped with a video system which records vehicle
stops when activated. (U)
8. The vehicle stop and events immediately following
the stop were recorded from a camera mounted in the
police cruiser. (U)
9. Immediately following the vehicle stop, Officer
Bolt approached the vehicle and requested
identification from David Green and co-defendant
Eddie Billingsley. (U)
10. David Green verbally identified himself but
initially did not produce identification. (U) 11. At 1:21:35 a.m. Eddie Billingsley opened the
right front door of the vehicle. (U)
12. Billingsley got out of the car and got back into
the car during the period time stamped on the
videotape as 1:21:35 through 1:23:35. (U)
13. During the traffic stop, Billingsley made furtive
movements before he got out of the car and after he
got back into the car.
14. During the time when Billingsley was outside of
the vehicle, David Green also got out of the vehicle.
15. Green was not wearing a raincoat.
16. Green appears to have exited the vehicle at that
time to talk to Officer Bolt.
17. As Green approached Bolt he reached into one of
his back pants pockets and retrieved his wallet.
18. While Green was outside the vehicle, Billingsley
returned to the vehicle and paused while standing by
the right front door of the vehicle.
19. The movements of Green and Billingsley do not
appear to have been coordinated or orchestrated in
20. Officer Bolt does not remember any conversation
he had with Green during the period time stamped on
the videotape as 1:21:35 through 1:23:35.
21. Officer Bolt did not observe Eddie Billingsley
dispose of anything at any time during the traffic stop. (U)
22. After reviewing the portion of the videotape time
stamped 1:21:35 through 1:23:35 at the sentencing
hearing, Officer Bolt acknowledged that he observed
David Green remove something from his back pocket
after he exited the vehicle which quite possibly was
23. Eddie Billingsley later exited the vehicle a
second time. (U)
24. The second time that Billingsley exited the
vehicle during the traffic stop is shown during the
portion of the videotape time stamped 1:39:41 through
25. Green remained in the vehicle when Billingsley
exited the vehicle the second time.
26. During his cross examination, Officer Roy Snyder
testified as to what he observed when reviewing the
portion of the videotape time stamped 1:39:41 through
27. At the point time stamped on the videotape
1:39:41, Haisson Williams was directly in front of
the camera wearing a white shirt. (U)
28. At the point time stamped on the videotape
1:39:41, Eddie Billingsley is seen to the right of
Haisson Williams. (U) 29. At the point time stamped on the videotape
1:39:41, David Green is seated in the back seat of
the vehicle. (U)
30. During the portion of the videotape time stamped
1:39:41 through 1:40:17 Billingsley moves to the
front right fender area of the vehicle.
31. Billingsley's movements at that time are
consistent with the actions one would take to attempt
to remove something from the vehicle without
detection and deposit it in the street.
32. Officer Snyder testified that Eddie Billingsley's
movements at the front right of the vehicle during
the period time stamped 1:39:41 to 1:40:17 is the
portion of the videotape to which he was referring in
his report when he stated "[w]hen reviewing the
videotape it was observed that Billingsley exited the
Infinity, walked to the front of the car and dropped
the black plastic bag object to the ground, then got
back into the car." (U/O)
33. David Green could not have been distracting the
police officer to facilitate Billingsley's disposal
of the 10 ounces of crack cocaine during the period
time stamped on the videotape 1:39:41 to 1:40:17
because he was seated in the back seat of the
vehicle. 34. In connection with the traffic stop, the
Williamsport Police Officers discovered 284.9 grams
of cocaine base, or crack cocaine, in the street
pavement area where the vehicle had been stopped.
35. At some time during the traffic stop Eddie
Billingsley dropped the package containing the
approximately ten ounces of crack cocaine by the
right front of the vehicle in which the defendants
had been riding. (U)
36. On September 23, 2004, a federal grand jury
returned a one-count indictment charging Green,
Williams, and Billingsley with possession with the
intent to distribute more than 50 grams of cocaine
base and aiding and abetting in violation of
21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2.
37. On February 3, 2005, the government, Green, and
counsel for Green stipulated that "[a]fter the
vehicle was stopped for a traffic violation, David
Green learned that there was crack cocaine in the
38. The felony charges initially filed against Green
were ultimately resolved by Green pleading guilty to
an information charging him with possession of less
than 5 grams of cocaine base in violation of
21 U.S.C. § 844(a).
39. Haisson Williams is facing a sentencing guideline imprisonment range of 151 to 188 months. (U)
40. The government has agreed to recommend a downward
departure in exchange for Haisson Williams's
41. During Green's pre-sentence hearing, Williams
stated for the first time that Williams had possessed
five grams of crack cocaine when the traffic stop
occurred on September 18, 2004.
42. Haisson Williams testified that Eddie Billingsley
knew women in Williamsport and was going to introduce
Haisson Williams and David Green to women. (U/O)
43. Williams further testified that Green had been
aware of the crack possessed by Williams.
44. There was no evidence relating to the recovery or
disposition of the five grams of crack cocaine
Williams claimed he possessed. (U/O)
45. There were no police reports or reports of
interviews of Williams relating to his supposed
possession of five grams of crack cocaine and Green's
supposed knowledge of that fact introduced at the
sentencing hearing held on September 23, 2005. (U/O)
46. Following his arrest on September 18, 2004,
Williams made a statement to Williamsport Police
Officer Snyder and lied. (U/O) 47. On September 18, 2004, Williams lied when he told
Officer Snyder that the vehicle in which they were
riding belonged to his cousin, Kelly. (U/O)
48. On September 18, 2004, Williams lied when he told
officer Snyder that Kelly was his cousin. (U/O)
49. On September 18, 2004, Williams lied when he told
Officer Snyder that he had called Kelly from New York
to tell her that he was coming to Williamsport to
50. On September 18, 2004, Williams lied when he told
Officer Snyder that Kelly asked him to bring Green
and Billingsley with him. (U/O)
51. On September 18, 2004, Williams lied when he told
Officer Snyder that he, Green, and Kelly were all
52. On September 18, 2004, Williams lied when he told
Officer Snyder that Green had been to Williamsport
before and that Green usually comes with him when he
comes to Williamsport. (U/O)
53. Prior to September 18, 2004, Green had never been
to Williamsport, Pennsylvania. (U/O)
54. Prior to the traffic stop Green did not know that
there was crack cocaine in the vehicle.
55. Green was not coming to Williamsport,
Pennsylvania, to sell crack cocaine.
The parties do not contest the Probation Officer's
determination that the advisory guideline imprisonment range is 0
to 6 months. The dispute in this case concerns the issue of
whether we may rely upon certain facts asserted in the
government's sentencing briefs in sentencing Green. The
assertions at issue relate to Green's involvement in Williams's
and Billingsley's conspiracy to distribute drugs in Williamsport.
The government specifically claims the following in its
sentencing brief: 1) "While Billingsley was attempting to dispose
[of] the ten ounces of crack[,] Green exited the vehicle and
attempted to distract the police officers"; and 2) ". . . Green
was coming to Williamsport, . . ., to sell crack cocaine."
(United States Opposition Brief, p. 1, 2)
As a threshold matter, we are compelled to note that those
assertions are inconsistent with, if not completely contrary to,
a stipulation filed by the parties on February 3, 2005. The
stipulation provides in relevant part as follows:
2. After the vehicle was stopped for a traffic
violation, David Green learned that there was crack
cocaine in the vehicle.
3. The defendant reasonably believed the quantity of
drugs was less than 5 grams of crack, cocaine base,
and that he was going to get some of it.
(Stipulation, pp. 1-2, ¶¶ 2, 3) The government argues that neither it nor the court is bound by
the facts set forth in the stipulation because facts first
discovered after entry of the stipulation disprove the
stipulation's accuracy. The government has not provided any
authority to support its position.
Our view, and that of the reported cases, is that the
government remains bound by the stipulation. See U.S. v.
DeWitt, 366 F.3d 667, 672 (8th Cir. 2004) ("Where the government
stipulates to a drug quantity and a base offense level, it may
not then initiate an effort at the sentencing hearing to obtain a
greater sentence, even if the government has come to believe that
the stipulation was made in error."); see also United States v.
Cianci, 154 F.3d 106, 110 (3d Cir. 1998) (noting the court's
reluctance "to allow a defendant to argue facts which
contradicted those he agreed to in his plea agreement").
For that reason, to the extent that any other evidence
(including Haisson Williams's testimony) is inconsistent with the
parties' stipulation, we summarily disregard the evidence without
further comment on it. The terms of the stipulation bind the
parties and we will sentence Green pursuant to the terms of the
Our decision to apply the terms of the parties' stipulation
squarely resolves the factual disputes in this case. However, the
videotape introduced into evidence at Green's pre-sentence hearing merits further consideration because it supports the
conclusions we have reached as a result of the stipulation.
The government asserts that Green exited the vehicle during the
traffic stop in an attempt to distract the police to facilitate
Billingsley's disposal of the drugs. A corollary to that
assertion is that Green was acting in concert with Billingsley
and the two men coordinated their movements to achieve their
joint goal (i.e., disposal of the crack cocaine beside the
vehicle). The videotape shows that while Green exited the vehicle
only once, Billingsley did so twice. During the instance that
both men were outside the vehicle, Billingsley's movements near
the door of the vehicle do not appear to have been adequate for
him to dispose of anything alongside the vehicle. It is far more
likely that Billingsley placed the drugs on the road during the
second time when he exited the vehicle and when Green was in the
car. Consequently, the evidentiary record presented to us does
not support the government's position.
For the reasons set forth above, the government has not met its
burden of establishing (by even a preponderance of the evidence)
that Green was in any manner involved with Williams's and
Billingsley's plan to distribute drugs in Williamsport,
Pennsylvania. Similarly, the government has not proven that, at
any point prior to the traffic stop by the police on September
18, 2004, Green knew that there was crack ...