                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          JUN 8 2001
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-5097
                                                   (D.C. No. 99-CR-31-C)
 LARRY WAYNE BARNES,                                    (N.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before SEYMOUR, MCWILLIAMS, and KELLY, Circuit Judges.


       Defendant-Appellant Larry Barnes, Jr., appeals from his sentence imposed

by the district court. On January 7, 1999, Mr. Barnes was found in possession of

chemicals, glassware, and other items which he intended to use to manufacture

methamphetamine. I R. doc. 62, at 5. He pled guilty to one count of possession

of materials used in the manufacture of methamphetamine in violation of 21

U.S.C. § 843(a)(6). I R. doc. 84, at 1. Mr. Barnes appeals from the government’s

alleged breach of a stipulation in the plea agreement. Our jurisdiction arises



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
under 28 U.S.C. § 1291, and we affirm.

      Mr. Barnes’ presentence report included as relevant conduct his possession

of over three kilograms of methamphetamine and eleven grams of marijuana

between 1997 and March 1999. II R. at 11-12. In a subsequent stipulation, Mr.

Barnes and the government agreed that “the drug quantities relevant to

Defendants’ [sic] conduct and the instant offense on January 7, 1999 involve

more than 50 G but less than 200 G of Methamphetamine or at least 10G but less

than 40G of Methamphetamine (actual).” I R. doc. 82, at 1. At the sentencing

hearing, Mr. Barnes and the government disagreed as to the meaning of the

stipulation. Mr. Barnes construed the stipulation as limiting relevant conduct to

the methamphetamine in Mr. Barnes’ possession on January 7, 1999. III R. at 4,

7. In stark contrast, the government narrowly construed the stipulation to limit

only the quantity of methamphetamine involved in the instant offense. Id. at 5.

Rather than rely upon the stipulation, the district court independently exercised its

discretion to determine relevant conduct. Id. at 8-9. The court agreed with the

government that relevant conduct included Mr. Barnes’ possession of marijuana

and methamphetamine between 1997 and March 1999, id. at 9, and adopted the

presentence report’s recommended sentence of 120 months imprisonment and

three years supervised release. Id. at 12-13.

      On appeal, Mr. Barnes argues that the government breached the stipulation.


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He asserts that he could have received a shorter sentence had the government

honored the stipulation. We disagree. The parties executed the stipulation with

the understanding that it was not binding upon the district court. I R. doc. 62, at

10-11; doc. 82, at 1-2. At sentencing, the district court was aware that it was not

bound by the stipulation, and exercised its discretion to independently determine

relevant conduct. III R. doc. at 8-9. Accordingly, even if we agreed that the

government breached the stipulation, the breach was harmless error. See United

States v. Belt, 89 F.3d 710, 713 (10th Cir. 1996).

      This is not to say that we condone the government’s conduct at sentencing.

Indeed, the government’s construction of the stipulation at sentencing bordered on

the disingenuous. We remind the government that it is required to act in good

faith and fulfill all promises it makes in exchange for a plea of guilty. See United

States v. Brye, 146 F.3d 1207, 1209-10 (10th Cir. 1998).

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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