In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1134

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JAVIER HERNANDEZ,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 05 CR 10062—Joe Billy McDade, Judge.

ARGUED JANUARY 14, 2008—DECIDED SEPTEMBER 12, 2008

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Javier Hernandez pled guilty

to conspiring to knowingly distribute cocaine. In the

plea agreement, the parties agreed to have the district

court determine, beyond a reasonable doubt, the quantity

of drugs for which Hernandez would be held accountable

in determining his sentence. Because it is unclear how the

district court arrived at its drug quantity calculation,

we cannot determine whether the government met its
2 No. 07-1134

burden so we find that the district court committed clear

error. We remand this case to the district court to determine the amount of drugs attributable to Hernandez.

I. BACKGROUND

Javier Hernandez was charged with conspiring to

knowingly distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1). The indictment alleged that more than five

kilograms of cocaine and fifty grams of crack were involved in the conspiracy. Pursuant to his plea agreement,

Hernandez pled guilty to distributing only one kilogram

of cocaine. His plea agreement also stipulated that any

further drug quantities had to be proven beyond a reasonable doubt at sentencing. The district court agreed to

apply the burden of proof stipulated to by the parties in

determining the drug quantity attributable to Hernandez.

At the sentencing hearing, Darrell Daily, Melvin Harmon,

Troy Powers, and Eric Keith testified that Hernandez

provided them with at least 196 kilograms of cocaine

over the course of the conspiracy. Daily testified that in

September of 2001, Hernandez supplied him with one

kilogram of cocaine. Daily then sold this cocaine to

Harmon, who sold it to Dumond and Courtney Morris.

Hernandez later provided Daily with another kilogram

of cocaine after Harmon indicated that the first kilogram

was “bad,” or unusable. In the remaining months of 2001,

Daily continued to sell small amounts of cocaine to the

Morrises indirectly through Harmon. Harmon testified

that he sold two to three kilograms per month to the

Morrises for the remaining months of 2001.
No. 07-1134 3

According to the testimony at the hearing, the drug

quantities that Daily obtained from Hernandez increased

substantially in 2002. In 2002, Hernandez supplied Daily

with between one and twelve kilograms of cocaine on

multiple occasions, and seventeen kilograms of cocaine

on one occasion. Daily supplied Harmon, who sold the

Morrises at least six kilograms of cocaine every month in

2002. There were also at least two occasions in 2002 where

Daily supplied the Morrises directly with six to seven

kilograms of cocaine. By this time, Daily had a supplier

other than Hernandez, but it is not clear if Daily began

purchasing cocaine from this alternate source in 2002

or 2003.

In 2003, Daily sold approximately twenty-five kilograms

of cocaine to Harmon. In late 2003, Hernandez provided

Harmon with fifty kilograms of cocaine directly. In

2004, Hernandez continued to supply Harmon, who sold

approximately seventy kilograms of cocaine to the

Morrises that year. Harmon was arrested in March 2005

for attempting to sell one kilogram of cocaine, which

had been provided by Hernandez, to a third party. 

Powers testified that in the fall of 2003, he purchased

four and a half ounces of cocaine from Hernandez. He

also purchased a similar amount of cocaine from

Hernandez on two to three other occasions that year. In

2004 and 2005, Powers purchased one to three kilograms

of cocaine once or twice a month from Hernandez until

Hernandez’s arrest in June 2005. Powers estimated that he

received fifteen to twenty kilograms of cocaine from

Hernandez from early 2004 until June 2005.
4 No. 07-1134

Harmon introduced Keith into the drug scheme, and

both Harmon and Daily supplied Keith. Keith testified

that from 2001 until 2004, he obtained at least one kilogram of cocaine a week from Harmon until Keith’s arrest

in 2004. In 2002, Daily sold Keith six to seven grams of

cocaine, which were provided by Harmon. Keith testified

that, by the time of his arrest, he had received seventy

kilograms of cocaine from Harmon and five from Daily.

All of the cocaine involved in these transactions originated

from Hernandez. In 2004, Keith obtained five kilograms of

cocaine directly from Hernandez.

Hernandez did not present any witnesses at the hearing,

but during cross-examination of the government’s witnesses, his attorney elicited testimony indicating that they

had made prior inconsistent statements to the agents

investigating the case. Hernandez argued that the witnesses were biased because they were receiving benefits

from the government in exchange for their testimony, and

there were no drug ledgers or other records to corroborate

their testimony. In response, the government contended

that the witnesses established that Hernandez was responsible for distributing at least 196 kilograms of powder

cocaine—eight kilograms in 2001; seventy-two kilograms

in 2002; twenty-five kilograms in 2003; seventy-five

kilograms in 2004; and sixteen kilograms in 2005. The

district court ultimately concluded that Hernandez was

responsible for distributing 159 kilograms of cocaine,

which it considered a “conservative” estimate based on its

consideration of the credibility of the witnesses. The court

did not explain how it arrived at 159 kilograms, but did

indicate that its decision was made beyond a reasonable doubt.
No. 07-1134 5

The finding of 159 kilograms resulted in Hernandez

having a base offense level of 38. After applying a fourlevel enhancement for his leadership role in the offense

and awarding a two-level reduction for acceptance of

responsibility, the court determined that Hernandez had

an offense level of 40. With a Criminal History Category of

IV, the resulting advisory guidelines range was 360 months

to life. The court sentenced Hernandez to 360 months

in prison. Hernandez appeals, arguing that there was

insufficient evidence to support the district court’s sentencing determination regarding drug quantity.

II. ANALYSIS

A. The district court did not commit clear error by

crediting the testimony of the government’s witnesses at the sentencing hearing.

We review the district court’s application of the sentencing guidelines de novo and its factual findings under the

clearly erroneous standard of review. United States v.

Bennett, 461 F.3d 910, 912 (7th Cir. 2006). We will reverse

the district court’s factual findings only where there is a

“definite and firm conviction that a mistake has been

committed.” Id.; United States v. Noble, 246 F.3d 946, 951

(7th Cir. 2001). In determining a drug offender’s base

offense level, a district court considers quantities of drugs

specified in the count of conviction and the quantities

that were part of the same course of conduct or common

scheme or plan as the offense of conviction. See U.S.S.G.

§ 1B1.3(a)(2); United States v. Huerta, 239 F.3d 865, 875

(7th Cir. 2001). In doing so, “the district court is entitled
6 No. 07-1134

to estimate drug quantity using testimony about the

frequency of dealing and the amount dealt over a specified

period of time.” Noble, 246 F.3d at 952 (internal citations

omitted).

Hernandez disputes the drug quantity determination

made by the district court, arguing that the witnesses

who testified against him were not credible, and that the

government failed to present any evidence to corroborate

their testimony, such as ledgers or records memorializing

the drug transactions. We have held, however, that

“uncorroborated evidence can be a sufficient basis for a

sentence.” United States v. Johnson, 227 F.3d 807, 813 (7th

Cir. 2000). Hernandez’s arguments regarding witness

credibility are also not persuasive. We are “reluctant to

disturb credibility determinations absent a compelling

reason,” Noble, 246 F.3d at 951, and here, no compelling

reason exists. Hernandez focuses most of his efforts on

undermining the credibility of Daily and Keith, whose

testimony contained gaps and inconsistencies. Hernandez

argues that Keith is unreliable because Keith testified that

he named Hernandez as his supplier to the agents who

arrested Keith, but Hernandez is never mentioned in

the agents’ reports. Keith eventually told the agents that

he had purchased cocaine directly from Hernandez, but

it was two years after his initial arrest. This two year gap,

Hernandez maintains, destroys Keith’s credibility.

The omission of Hernandez from the agents’ reports,

however, does not necessarily conflict with Keith’s later

testimony that Hernandez was his supplier. Keith indicated on cross-examination that he did not mention
No. 07-1134 7

Hernandez because he was not asked about any of his

transactions or dealings with Hernandez; additionally, he

testified that he had discussed Hernandez on occasions

that were not mentioned in the reports. Although Keith

does not identify Hernandez as his supplier until two years

after his arrest, Keith first mentioned Hernandez to the

agents three weeks after Keith’s arrest. Keith mentioned to

the agents that at one of his transactions with Harmon, he

saw someone that he believed to be Harmon’s supplier,

whom he referred to as “Javy,” which is Hernandez’s

nickname. During this incident, Hernandez brought the

cocaine to Harmon, who then sold it to Keith. From this

perspective, the district court could have concluded that,

despite the time gap, Keith’s testimony that he bought

five kilograms directly from Hernandez is credible

because Keith identified Hernandez as the supplier of

the cocaine that he had purchased during his early transactions with Harmon. It would not be a stretch to believe

that Keith later obtained cocaine from Hernandez directly.

Hernandez also tried to discredit Harmon’s testimony

that he received approximately seventy-two kilograms of

cocaine indirectly through Hernandez in 2002 because

Harmon testified that he never went with Daily to meet

Hernandez to pick up the drugs. The fact that Harmon

never went with Daily to get drugs from Hernandez does

not mean that Hernandez did not supply Daily with the

drugs that Harmon received. Harmon testified that

“I would inform Darrell Daily that I needed a certain

amount of—certain amount of kilos . . . and then I would

meet up with him at his house and I would wait and then

Javier would come in and then would leave, then I would
8 No. 07-1134

have the amount that I was waiting for.” From this testimony, there is a strong inference that Hernandez was the

source of the drugs that Daily provided to Harmon. In

fact, Daily testified that in 2002 he received between one

and twelve kilograms of cocaine from Hernandez on

multiple occasions and seventeen kilograms on one

occasion in particular, and Daily was Harmon’s supplier.

Nonetheless, as Hernandez points out, there were

inconsistencies in the testimony of the witnesses, particularly Daily. Discrepancies or inconsistent prior statements do not, as a matter of law, render a witness’s

testimony incredible. United States v. Alcantar, 83 F.3d 185,

189-90 (7th Cir. 1996). “In order for testimony to be found

incredible as a matter of law, ‘it must have been either

physically impossible for the witness to observe that

which he or she claims occurred, or impossible under

the laws of nature for the occurrence to have taken place

at all.’ ” United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir.

2005) (citing United States v. McEntire, 153 F.3d 424, 435 (7th

Cir. 1998)).

Here the testimony was neither impossible nor improbable, and in fact, the prosecutor tried to account for inconsistencies in the witnesses’ testimony by excluding certain amounts where appropriate. For example, Daily gave

conflicting testimony about when he started receiving

cocaine from a source other than Hernandez, so the

government did not rely on Daily’s testimony in calculating Hernandez’s drug quantity for the year 2003. Additionally, Daily testified that ninety percent of his supply

came from Hernandez in 2002, leading the prosecutor to
No. 07-1134 9

proportionately discount the amount attributed to

Hernandez for that year. Also, Harmon initially told

authorities that he bought approximately twenty-five

kilograms of cocaine directly from Hernandez in 2004,

but later testified that he obtained fifty to seventy-five

kilograms of cocaine. The prosecutor asked the court to

hold Hernandez responsible for only twenty-five kilograms

of cocaine, rather than fifty or seventy-five kilograms.

Furthermore, the witnesses’ testimonies were fairly consistent with regards to the hierarchy of the drug operation;

the business arrangement with the Morrises; and Keith’s

introduction into the drug scheme. Daily and Harmon

corroborated each other’s testimony in describing the

formation of the drug operation in prison and their

initial transaction with the Morrises. They also testified

similarly as to the later transactions with the Morrises as

well as the introduction of Keith, another of Harmon’s

former prison mates, into the drug scheme. There was

also overlap in testimony regarding the drug quantities—for example, Daily testified that in 2001 and 2002,

ninety percent of his supply of cocaine came from

Hernandez, which was approximately eighty kilograms.

Harmon’s testimony regarding his distributions to the

Morrises was that during those years he sold them approximately eighty kilograms of cocaine, all of which were

supplied by Daily. Thus, there is some indicia of reliability to the witnesses’ testimony which, when combined

with their testimony about the frequency and amount of

the drug dealing, could have reasonably led the district

court to conclude that much of their testimony was credible. Noble, 246 F.3d at 952 (“The district court is entitled

to estimate drug quantity using testimony about the
10 No. 07-1134

frequency of dealing and the amount dealt over a specified

period of time”) (citing United States v. Durham, 211 F.3d

437, 444 (7th Cir. 2000)).

Finally, Hernandez argues that because Daily, Harmon,

and Powers are convicted felons, this fact in and of itself

impeaches their credibility. This argument need not

detain us long. While this is one factor that the district

court can consider in weighing the evidence, it is also

within the district court’s discretion to give some weight

to their testimony, notwithstanding their status as felons.

United States v. Johnson, 489 F.3d 794, 797 (7th Cir. 2007)

(noting that the district court can credit testimony that

is “totally uncorroborated and comes from an admitted

liar, convicted felon, large scale drug-dealing, paid government informant”). Accordingly, we find that the

district court did not commit clear error in finding that

the government’s witnesses were credible.

B. The district court’s drug quantity calculation was

clearly erroneous because the district court failed to

specify how it determined the amount of drugs

attributable to Hernandez.

While the district court could conclude, based on the

testimony at the sentencing hearing, that Hernandez

conspired to distribute more than 150 kilograms of cocaine,

it is unclear how it arrived at the 159 kilograms that it

ultimately settled on as the drug quantity amount. The

government agrees that, based on the testimony at the

sentencing hearing, there is no way to arrive at 159 kilograms as the amount of cocaine attributable to Hernandez.
No. 07-1134 11

From the record, it is apparent that the district court

weighed any perceived conflicts in the testimony, the

witnesses’ felon status, and the imprecise nature of the

drug calculations in reducing Hernandez’s drug quantity

amount by almost forty kilograms from what the government asked it to consider in imposing sentence. Further,

the district court indicated that its estimate was “conservative,” suggesting that it believed that Hernandez was

responsible for more drugs than it actually attributed

to him.

The district court’s failure to indicate how it arrived at

its drug quantity calculation is problematic, however,

because Hernandez’s base offense level of 40 corresponds

to a drug quantity amount of 150 kilograms or more of

cocaine; the court settled on 159 kilograms, which is

extremely close to the cutoff of 150 kilograms. See U.S.S.G.

§ 2D1.1. Had it reduced the drug quantity finding by an

additional nine kilograms, the base offense level would

have been 36 (the range for 50 to 150 kilograms of cocaine)

which, with the four-level enhancement for leadership

role in an offense and two-level reduction for acceptance

of responsibility, would have been a base offense level of

38. Given Hernandez’s Criminal History Category of IV,

the advisory guidelines range would be 262-327 months,

rather than the range of 360 months to life used by the

district court. See U.S.S.G. § 5A.

It is clear that in Hernandez’s situation, where the

district court’s drug quantity calculation placed him on

the cusp of a lower guidelines range, every kilogram

counts. In particular, Daily’s testimony leaves the most
12 No. 07-1134

room for error. While the government discounted much of

Daily’s testimony in calculating its drug quantity recommendation, it is not clear what portions of Daily’s testimony the district court credited in determining the drug

quantity amount attributable to Hernandez. Daily testified

that he started buying cocaine from a supplier other

than Hernandez in 2002 because of the incident with

the “bad kilo,” but Daily’s proffer statement, which

was used to refresh his recollection at the sentencing,

indicated that Daily first started buying cocaine from

the alternate source in May of 2003. While the government did not include any of Hernandez’s sales to Daily

in 2003 in its drug quantity calculation because of this

discrepancy, it is not clear if the district court also reduced

the drug quantity amount for 2002 based on Daily’s

conflicting testimony that he purchased drugs from an

individual other than Hernandez that year.

In addition, Daily initially testified that approximately

ninety percent of the cocaine that he sold to the Morrises

from 2001 until 2003, either directly or through Harmon,

was provided by Hernandez, but later changed his testimony to suggest that the ninety percent figure might not

be entirely correct and that Hernandez might not have

been Daily’s primary source. This testimony suggests that

Hernandez’s drug sales to Daily may have been less than

the amount of drugs that the government sought to

attribute to Hernandez from 2001 until 2003.

In contrast, Harmon’s testimony indicates that

Hernandez might be responsible for more than the drug

quantity that the government attributed to Hernandez
No. 07-1134 13

for the year 2002. For example, Harmon testified that

there was at least one instance in 2002 were he provided

eight kilograms of cocaine to the Morrises. In calculating

drug quantity for 2002, the prosecutor did not include

this figure, opting instead to rely on Harmon’s testimony

that he provided at least six kilograms to the Morrises

every month in 2002. The prosecutor also relied on the

lower estimate regarding the drugs that Hernandez sold

to Harmon in 2004, relying on the figure of twenty-five

kilograms because of discrepancies in Harmon’s testimony,

even though Harmon testified that he was obtaining, on

average, ten kilograms a month from Hernandez during

that year, and at one point, had obtained eighteen kilograms of cocaine from Hernandez to sell to the Morrises.

While the prosecutor’s reliance on the lower drug

amount is certainly not problematic, these discrepancies

illustrate the need for specificity by the district court as to

what testimony it relied on in calculating the 159 kilograms

it ultimately held Hernandez responsible for, especially

given this amount’s proximity to the cutoff for the

lower base offense level, which corresponds to a drug

quantity amount of 50-150 kilograms of cocaine.

We have long recognized that the drug quantity calculation is necessarily imprecise because “drug dealers ordinarily do not use invoices and bills of lading”; therefore,

“sentencing courts may make reasonable estimates as to

drug quantities.” United States v. Rodriguez, 67 F.3d 1312,

1325 (7th Cir. 1995). Here, the district court’s determination that Hernandez was responsible for 159 kilograms

might be a “conservative” estimate given that the government asked it to attribute a drug quantity of 196
14 No. 07-1134

The defendant also argues that the district court should have 1

adhered to the Federal Rules of Evidence at his sentencing

hearing because the parties agreed to a higher burden of proof.

The defendant offers no authority for this position and the

(continued...)

kilograms to Hernandez. We also know that the district

court did not count eighteen kilograms of cocaine that

Hernandez supplied to Powers through a third party after

his arrest. Although the district court reduced the drug

quantity calculation recommended by the government

by almost forty kilograms because of the various contradictions and inconsistencies present in the witnesses’

testimony, the district court does not indicate which

amounts it actually relied on in calculating the 159 kilograms that it ultimately attributed to Hernandez. Given

the various amounts mentioned during the testimony at

sentencing and the fact that the district court did not

explain how it determined its drug quantity calculation,

it is impossible for us to find that there was no error in

the calculation.

C. The parties can stipulate to a different burden of

proof than that required by law, but we cannot

determine from the record if the government met

its burden.

In the plea agreement, the parties stipulated that the

government has the burden of proving the quantity of

drugs attributable to Hernandez beyond a reasonable

doubt at sentencing. Usually, the district court makes

1
No. 07-1134 15

(...continued) 1

parties did not explicitly agree to such an arrangement. Therefore, we will not read new terms into the plea agreement.

drug quantity findings at sentencing based on the preponderance standard. United States v. Spiller, 261 F.3d 683, 691

(7th Cir. 2001) (“[A]t sentencing, the Government must

prove the facts underlying the base offense or an enhancement by a preponderance of the evidence.”) (internal

citation and quotation omitted). Nevertheless, the district

court stated that it made its findings consistent with the

standard agreed on by the parties because it assumed it

was bound by the stipulation. As a general matter, we do

not subscribe to the idea that the court was bound by the

parties’ stipulation. United States v. Mankiewicz, 122 F.3d

399, 403 n.1 (7th Cir. 1997) (“As the Guidelines themselves

make clear, although the plea agreement binds the parties,

it does not bind the court.”); see also U.S.S.G. § 6B1.4(d)

(stating that parties can stipulate to facts relevant to

sentencing as a part of a plea agreement, but the court is

not obligated to accept the stipulation).

In fact, a district court can reject a plea agreement in

its entirety as long as the court “articulates a sound reason

for rejecting the agreement.” United States v. King, 506 F.3d

532, 535 (7th Cir. 2007) (affirming the district court’s

rejection of a plea agreement on the basis that the sentence within the parties’ proposed guidelines range

would have been too low to achieve the sentencing goals

enumerated in 18 U.S.C. § 3553(a)); see also Fed. R. Crim. P.

11(c)(5) (discussing circumstances in which a district
16 No. 07-1134

Although neither side challenges the validity of the stipula- 2

tion, where the parties have changed the burden of proof

(continued...)

court can reject a plea agreement). This is particularly

true here where the parties have stipulated, not to specific

facts, but to a different standard for the applicable burden

of proof at sentencing. See Swift & Co. v. Hocking Valley R.

Co., 243 U.S. 281, 290 (1917) (“the court cannot be controlled by agreement of counsel on a subsidiary question

of law”); United States v. One 1978 Bell Jet Ranger Helicopter,

707 F.2d 461, 462 (11th Cir. 1983) (“a stipulation of the

parties to an action may be ignored by the court if it is a

stipulation as to what the law requires”); King v. United

States, 641 F.2d 253, 258 (5th Cir. 1981) (same).

However, where a court opts to enforce a plea agreement, it should adhere to the terms agreed upon by the

parties. Plea agreements are contracts, and should be

interpreted according to principles of contract law. United

States v. Randle, 324 F.3d 550, 557-58 (7th Cir. 2003) (citing

United States v. Williams, 102 F.3d 923, 926-27 (7th Cir.

1996)). Like other contracts, plea agreements should be

enforced consistent with the intent of the parties and the

language of the agreement. United States v. Atkinson, 259

F.3d 648, 654 (7th Cir. 2001) (“[W]e review the language

of the plea agreement objectively and hold the government to the literal terms of the plea agreement.”) (citation

omitted).

The district court opted to enforce the stipulation.

Initially, we note that there does not appear to be any harm

from its decision to do so. Unlike a situation in which a 2
No. 07-1134 17

(...continued) 2

through their plea agreement, it is within the realm of our

authority to question, sua sponte, the propriety of doing so. See

Kamen v. Kemper Fin. Servs., 500 U.S. 90, 99 (1991) (“When an

issue or claim is properly before the court, the court is not

limited to the particular legal theories advanced by the

parties, but rather retains the independent power to identify

and apply the proper construction of governing law.”)

defendant has waived one of his rights as a part of a

constitutionally impermissible plea agreement, or where

the parties have stipulated to some unorthodox practice,

the same concerns are not present here. See United States v.

Hicks, 129 F.3d 376, 377 (7th Cir. 1997) (“a sentence based

on constitutionally impermissible criteria, such as race,

is invalid even though the defendant executed a blanket

waiver of his rights”); United States v. Feichtinger, 105 F.3d

1188, 1190 (7th Cir. 1997) (a sentence in excess of the

statutory maximum sentence for the defendant’s crime

invalidates sentence, notwithstanding defendant’s stipulation waiving his right to appeal); United States v. Andrews,

895 F.2d 406, 409 (7th Cir. 1990) (where the defendant

waived his right to have a trial declared a mistrial after

extrinsic evidence was submitted to the jury, “what is

important to our inquiry is that the trial court’s acceptance

of this waiver was not so offensive to our concept of

ordered liberty so as to shock our conscience”); United

States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (finding

that limitations exist on the ability of parties to stipulate

to the structure of the jury at trial because “if the parties

stipulated to trial by 12 orangutans the defendant’s
18 No. 07-1134

conviction would be invalid notwithstanding his consent,

because some minimum of civilized procedure is required by community feeling regardless of what the

defendant wants or is willing to accept.”).

Most notably, none of the defendant’s constitutional

rights are infringed by the stipulation and the standard

chosen by the parties is one with which the district court

is familiar. Furthermore, the sentencing hearing was

conducted in a manner that did not substantially deviate

from statutory or constitutional norms, and neither

party has contested the stipulation on appeal. Had any

of these factors not been present, the stipulation might be

invalid.

The problem is that we cannot determine if the district

court calculated the amounts of drugs attributable to

Hernandez using the reasonable doubt standard. The court

did not explain how it arrived at 159 kilograms as the

drug quantity amount; thus, it is not clear from the

record if the district court acted in accordance with the

stipulation, as it purported to do.

III. CONCLUSION 

Accordingly, we REVERSE and REMAND this case for

proceedings consistent with this opinion.

9-12-08