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United States v. Barthman

United States Court of Appeals, Eighth Circuit

April 3, 2019

United States of America Plaintiff - Appellee
v.
Brian Arthur Barthman Defendant-Appellant

          Submitted: November 16, 2018

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Brian Barthman pled guilty to one count of possession of child pornography involving a prepubescent minor, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). In the sentencing analysis, Barthman was assigned a total of six criminal-history points due to prior convictions in Minnesota state court for first- and second-degree criminal sexual conduct, which were treated as a single sentence for crimes of violence under United States Sentencing Commission, Guidelines Manual, § 4A1.1, comment. (n.5), and which yielded a criminal-history category of III.[1] Barthman was given a total offense level of 32. The district court found his Guidelines range was 151-188 months. Barthman was sentenced to 151 months imprisonment, to run concurrently with a state-court sentence. The district court also imposed a lifetime of supervised release.

         On appeal, Barthman challenges his sentence, arguing that the district court committed procedural error because he should have received only three, not six, criminal-history points, which would have yielded a criminal-history category of II, not III, and would have placed him within a lower Guidelines range of 135-168 months. In other words, Barthman contends he was placed in the wrong criminal-history category when he was given three additional criminal-history points for the prior convictions. See Gall v. United States, 552 U.S. 38, 51 (2007) (noting that appellate courts "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range"). The government agrees Barthman's criminal-history score was miscalculated because the applicable Minnesota statutes of conviction, Minn. Stat. §§ 609.342-.343, apply to victims under the age of 13, while the federal comparator statute, 18 U.S.C. § 2241(c), in relevant part, applies to victims under the age of 12. However, the government argues resentencing is unwarranted. We disagree and, accordingly, vacate the sentence and remand the case to the district court for resentencing.

         I.

         Before reaching the merits, the parties dispute whether Barthman preserved his claim on appeal in the district court. However, whether Barthman preserved his claim does not affect the outcome of this case. The government does not argue Barthman has waived, as opposed to forfeited, his claim, which would foreclose appellate review all together. See United States v. Olano, 507 U.S. 725, 733-34 (1993); United States v. Mariano, 729 F.3d 874, 880-81 (8th Cir. 2013). The government concedes that the district court committed procedural error when it increased Barthman's criminal-history category by assigning three additional points and that such error was prejudicial to Barthman because he was given a higher Guidelines range. However, it argues that, under plain-error review, the error was not "plain" and that even if it was plain this Court should not exercise its discretion to remedy the error. See Appellee's Br. 10-11; see also Olano, 507 U.S. at 734, 736 (describing the second and fourth prongs of plain-error review). We will assume, without deciding, that Barthman forfeited his claim on appeal and review for plain error. See, e.g., United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014) ("[A] defendant who does not object to the district court's miscalculation of his Guidelines range may receive plain error review.").

         Plain-error review provides us with "a limited power to correct errors that were forfeited . . . ." Olano, 507 U.S. at 731. The plain-error test is well established:

First, there must be an error or defect-some sort of [d]eviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (internal quotation marks and citations omitted). Barthman bears the burden of establishing all four prongs of plain-error review. See, e.g., United States v. Nahia, 437 F.3d 715, 716 (8th Cir. 2006).

         II.

         The government concedes the first and third prongs of plain-error review-error and prejudice, respectively. However, the government argues that, under the second prong, the error was not "plain" and that, even if the error was plain, this Court should not exercise its discretion to remedy the error ...


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