United States v. Brian Barthman , 919 F.3d 1118 ( 2019 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-1279
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Brian Arthur Barthman
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Minnesota - Minneapolis
    ____________
    Submitted: November 16, 2018
    Filed: April 3, 2019
    ____________
    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.
    1
    We grant Barthman’s motion to take judicial notice of his Minnesota state-
    court records.
    -2-
    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
    -3-
    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 pursuant to the fourth
    prong. We address each of the government’s arguments in turn.
    A.
    The government argues the district court’s error was not plain because
    Barthman “did not identify any flaw with the state statute or its breadth compared to
    the relevant federal statute. As a result, the district court was not on notice of
    any need to consult the state statute.” Appellee’s Br. 23. In other words, the
    government argues the error in this case cannot be plain because Barthman never
    brought the error to the district court’s attention. We disagree. The government’s
    argument overlooks that plain-error review assumes there was no objection made to
    the district court. See Henderson v. United States, 
    568 U.S. 266
    , 269, 273-74,
    279 (2013).
    Rather, as the government acknowledges, “an error is plain if, at the time of
    appellate review, the erroneous nature of the ruling is obvious.” Appellee’s Br. 24
    -4-
    (citing 
    Henderson, 568 U.S. at 269
    ); see also Johnson v. United States, 
    520 U.S. 461
    ,
    467 (1997) (“[T]he word ‘plain’ is synonymous with clear or, equivalently,
    obvious.”) (internal quotation marks omitted). The legal error in this case is obvious
    and not “subject to reasonable dispute,” 
    Puckett, 556 U.S. at 135
    , because, as the
    government acknowledges, the Minnesota statutes of conviction are “overbroad and
    indivisible.” Appellee’s Br. 24; see also 
    id. at 20-21.
    The prior convictions are not
    “forcible sex offense[s],” as defined in USSG § 4B1.2, comment. (n.1), because they
    qualify as such only if the victim was under the age of 12, see 18 U.S.C. § 2241(c),
    but the applicable subdivisions of the Minnesota statutes of conviction apply in cases
    where the victims are under the age of 13. See Minn. Stat. §§ 609.342-.343. When
    a state statute underlying a conviction criminalizes more conduct than the federal
    definition of a “crime of violence,” the state conviction does not count. See United
    States v. Schneider, 
    905 F.3d 1088
    , 1092-93 (8th Cir. 2018). Thus, “a
    straightforward application of the guidelines” demonstrates that the district court’s
    error is plain. United States v. Blocker, 
    612 F.3d 413
    , 416 (5th Cir.
    2010) (per curiam), abrogation on other grounds recognized in United States v.
    Martinez-Rodriguez, 
    821 F.3d 659
    , 664 (5th Cir. 2016). Accordingly, we may
    consider the error despite Barthman not bringing it to the district court’s attention.
    See 
    Henderson, 568 U.S. at 269
    .
    B.
    Although Barthman has established that, at the time of our review, the error in
    this case is plain, that is not the end of our inquiry; Barthman must also “persuade
    [us] that the error seriously affect[ed] the fairness, integrity or public reputation of
    judicial proceedings.” Rosales-Mireles v. United States, 
    138 S. Ct. 1897
    ,
    1909 n.4 (2018) (alterations in original) (quoting United States v. Vonn, 
    535 U.S. 55
    ,
    63 (2002)).          This is “a case-specific and fact-intensive” inquiry.
    
    Puckett, 556 U.S. at 142
    . Although “[t]here may be instances where countervailing
    factors satisfy [us] that the fairness, integrity, and public reputation of the
    -5-
    proceedings will be preserved absent correction,” 
    Rosales-Mireles, 138 S. Ct. at 1909
    , “[i]n the ordinary case, proof of a plain Guidelines error that affects the
    defendant’s substantial rights is sufficient to meet that burden.” 
    Id. at 1909
    n.4.
    Indeed, “[a] plain Guidelines error that affects a defendant’s substantial rights is
    precisely the type of error that ordinarily warrants relief under [plain-error review].”
    
    Id. at 1907.
           That is because “in the context of a plain Guidelines
    error[,]” 
    id. at 1908,
    “[t]he risk of unnecessary deprivation of liberty particularly
    undermines the fairness, integrity, or public reputation of judicial
    proceedings . . . .” 
    Id. The single
    “countervailing factor” suggested by the government is that
    Barthman’s federal sentence is concurrent with a longer state sentence, such that the
    error in calculating his federal sentence is not reasonably likely to result in any loss
    of liberty. Barthman’s concurrent state sentence, however, is not yet final on direct
    review. The Minnesota Supreme Court has granted review to consider Barthman’s
    challenges to the sentence imposed by the state district court. See State v. Barthman,
    No. A17-1191 (Minn. Nov. 27, 2018). At this time, without finality to the Minnesota
    proceedings involving Barthman’s concurrent state sentence, it is reasonably likely
    that the error in calculating Barthman’s federal sentence could result in him
    “spend[ing] more time in prison . . . .” 
    Rosales-Mireles, 138 S. Ct. at 1909
    -10.
    Accordingly, Barthman has established the fourth prong of plain-error review, and
    we exercise our discretion to remedy the district court’s error in this case. See
    
    Puckett, 556 U.S. at 135
    .
    III.
    We vacate the sentence and remand for resentencing.
    -6-
    STRAS, Circuit Judge, concurring in part and concurring in the judgment.
    I agree that we should vacate Barthman’s sentence, and more specifically, that
    he has established that it is “reasonably likely” that a calculation error in his federal
    sentence will lead to a longer overall stay in prison. Rosales-Mireles v. United States,
    
    138 S. Ct. 1897
    , 1910 (2018) (discussing and applying the fourth requirement of
    plain-error review in the context of an error in calculating a defendant’s advisory
    Sentencing Guidelines range). But not for the reason the court suggests.
    What is significant here is that the Minnesota Supreme Court has granted
    discretionary review in Barthman’s direct appeal, which occurs in only a small
    percentage of cases.2 See State v. Barthman, No. A17-1191 (Minn. Nov. 27, 2018)
    (order granting review). If Barthman’s case presents a close call, as many cases
    granted discretionary review before a court of last resort do, then it is reasonably
    likely that Barthman’s concurrent state sentence may well be vacated or shortened,
    meaning that his federal sentence could end up determining how long he spends in
    prison.
    Rather than focus on the specific facts of this case, however, the court broadly
    pronounces that the litmus test is “finality” under a theory that no one has briefed or
    argued. See Puckett v. United States, 
    556 U.S. 129
    , 142 (2009) (explaining that the
    “fourth prong [of plain-error review] is meant to be applied on a case-specific and
    fact-intensive basis” (emphasis added)). It is a strange place to draw the line. Under
    Minnesota law, a “court may at any time correct a sentence not authorized by law,”
    Minn. R. Crim. P. 27.03, subdiv. 9 (emphasis added), if it was “unauthorized . . . at
    the time it was imposed,” State v. Schnagl, 
    859 N.W.2d 297
    , 301 (Minn. 2015). The
    2
    Recent data shows a grant rate hovering between 10 and 12 percent. See Court
    Information Office, Minnesota Supreme Court 2 (2018), available at
    http://www.mncourts.gov/mncourtsgov/media/CIOMediaLibrary/DocumentLibrar
    y/SupremeCourt.pdf.
    -7-
    Minnesota Supreme Court has allowed district courts to use this rule to correct a
    broad range of errors, even after direct appeal, so finality in this context means little
    under Minnesota law. See, e.g., Reynolds v. State, 
    888 N.W.2d 125
    , 129–30 (Minn.
    2016) (permitting a court to correct a sentence imposed in violation of the Sixth
    Amendment); State v. Humes, 
    581 N.W.2d 317
    , 321 (Minn. 1998) (upholding the
    correction of a sentence to add a term of conditional release).
    In short, the simple fact that Barthman’s state sentence is not yet final tells us
    little about whether his shorter, concurrent federal sentence could play a role at some
    point. Far more revealing is that the Minnesota Supreme Court has determined that
    Barthman’s case, in particular, merits a closer look.
    ______________________________
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