United States v. Anthony Barrera ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1659
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY BARRERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-CR-00439(1) — Robert W. Gettleman, Judge.
____________________
ARGUED DECEMBER 15, 2020 — DECIDED DECEMBER 29, 2020
____________________
Before KANNE, HAMILTON, and BRENNAN, Circuit Judges.
PER CURIAM. Anthony Barrera sold a handgun to a fellow
gang member who turned out to be a confidential informant.
Barrera pleaded guilty to unlawful possession of a firearm,
18 U.S.C. § 922(g)(1), and was sentenced to 110 months’ im-
prisonment—a term at the bottom of his guideline range.
Critical to Barrera’s sentence was his post-arrest conduct,
which included publicizing the informant’s identity on so-
cial media. Barrera, who has cancer, appeals his sentence as
2 No. 20-1659
unreasonable. But the district court adequately explained the
sentence in light of the 18 U.S.C. § 3553(a) factors, so we
affirm.
I. BACKGROUND
Barrera and a fellow member of the Latin Kings met to
sell a handgun to another gang member. Unbeknownst to
Barrera, the buyer was a government informant wearing a
wire. The informant recorded the sale, during which Barrera
repeatedly handled the gun, told the buyer that he already
had test-fired it, and showed off holes in a door from bullets
shot from the gun.
Barrera, who had prior felonies, was indicted for unlaw-
ful possession of a firearm. 18 U.S.C. § 922(g)(1). During dis-
covery, the government produced the informant’s video and
moved for a protective order—an order barring Barrera from
disclosing any discovery, including the video, to anyone
outside the defense, given the risks that the video’s dissemi-
nation posed to further law-enforcement efforts and the in-
formant’s safety. The court granted the motion.
Despite the protective order, Barrera—while released on
bond—posted several clips of the video (including one that
was 59-seconds long) to the social media site Snapchat. He
named the informant in captions, proposed a “watch party”
of the video, and sent the posts to fellow Latin Kings.
The government moved to revoke Barrera’s pretrial
release based on his dissemination of the video, an act that
violated the protective order and his release conditions. The
defense countered by emphasizing Barrera’s medical
circumstances—he suffered from skin and lung cancer, as
well as a recent stroke, and the adequacy of the medical care
No. 20-1659 3
he would receive in custody was uncertain. The defense also
relayed Barrera’s intent to plead guilty.
The court held a change-of-plea hearing the next day. It
first questioned a representative from the correctional center
about the facility’s capacity to handle Barrera’s medical is-
sues; the facility assured the court that it could. The court
proceeded to conduct a Rule 11 colloquy during which it
advised Barrera of the potential guideline range and ex-
plained that the range was only advisory. It then accepted
his guilty plea and, given the facility’s assurances that it
could care for Barrera’s medical conditions, revoked his re-
lease pending sentencing. Concerned about Barrera’s health,
the court further ordered that the prison report back the fol-
lowing week about how it planned to treat him.
The parties then debated an appropriate sentence for
Barrera. The government recommended a within-guideline
sentence, emphasizing his extensive criminal history, his
efforts to sell the gun to a fellow gang member, and the dan-
ger he posed to the informant by sharing the confidential
videos. (According to the rules governing the Latin Kings,
retaliation—including murder—is warranted against mem-
bers who become informants, but only when there is irrefu-
table documentation like the video that Barrera published.)
Arguing in mitigation, the defense highlighted Barrera’s
tough upbringing, drug addiction, poor health, and ac-
ceptance of responsibility for his crimes.
The district court imposed a prison term of 110 months,
the bottom of Barrera’s 110 to 120 months guideline range. A
felon-in-possession charge, the court noted, often results in a
five-year sentence or less, depending on mitigating circum-
stances, but Barrera’s post-arrest conduct (violating the pro-
4 No. 20-1659
tective order and identifying the informant) was “so serious
and so alarming and so dangerous” that he could not be giv-
en a break from the guideline range, which in this case was
“reasonable and appropriate.” As for Barrera’s underlying
conduct of handling a gun while trying to sell it, the court
opined that trafficking guns to gang members leads to an
oversaturation of guns in the community and often to the
deaths and injuries of innocents. The court also lamented
that Barrera’s cancer had not been treated more aggressively
and recommended placement at a medical center where he
could receive proper care.
II. ANALYSIS
Barrera appeals his sentence, first making a bare-bones
argument that the court erred by treating the guideline as
per se reasonable, without considering that it could stray
from that range. But the court did not regard itself as bound
by the guideline. At the change-of-plea hearing, it
unequivocally stated that the range was advisory and that it
could impose any sentence, including one below the range
or up to the 10-year maximum sentence. And at sentencing,
it reiterated the guidelines’ advisory nature, opining that a
felon-in-possession crime normally warrants a five-year
sentence or less—implying that a below-guideline sentence is
often reasonable—but here Barrera’s post-arrest conduct
demanded a different result.
Next, Barrera argues that his 110-month sentence was
unreasonable because the court failed to justify it in light of
all the § 3553(a) factors. He acknowledges that the court ad-
dressed the nature of the offense and his own history and
characteristics, 18 U.S.C. § 3553(a)(1), but maintains that the
court failed to consider the factors of deterrence,
No. 20-1659 5
id. § 3553(a)(2)(B), and the need to protect the public,
id. § 3553(a)(2)(C)—both of which would be affected by his
poor health and cancer diagnosis.
True, the court did not elaborate on every factor under 18
U.S.C. § 3553(a), but it was not required to; it is sufficient to
briefly explain those factors that it considered most relevant.
See United States v. Smith, 721 F.3d 904, 908 (7th Cir. 2013)
(affirming sentence as reasonable where court placed signifi-
cant weight on one § 3553(a) factor). The court adequately
did so here: It justified Barrera’s sentence based on the na-
ture of his offense and the seriousness of his conduct—
selling a gun to a gang-member, violating the court’s protec-
tive order, and outing the informant. See 18 U.S.C.
§ 3553(a)(1), (2)(A). And contrary to Barrera’s suggestion, the
court elaborated beyond those two factors, contemplating
Barrera’s characteristics (his need for placement at a medical
facility), id. § 3553(a)(1); the need to protect the public from
the gun-trafficking crimes, id. § 3553(a)(2)(C); and the kinds
of sentences normally imposed for possession crimes (and
why the typical five-year sentence was inappropriate here),
id. § 3553(a)(3). That the court did not address Barrera’s ill-
nesses in light of the need for deterrence or protecting the
public is irrelevant, given that he never raised those argu-
ments in the district court. See United States v. Jackson,
547 F.3d 786, 795 (7th Cir. 2008) (affirming sentence as rea-
sonable where court considered only fully developed argu-
ments in mitigation).
Barrera next argues that his sentence was unreasonable
because the district court based it on unsupported facts and
inferences. He points, for instance, to the court’s statement
about his role in selling the handgun—a statement he calls
6 No. 20-1659
“inappropriate” because he pleaded guilty only to possessing
the gun. But sentencing courts may consider, besides the
crime pleaded guilty to, the circumstances of the offense. 18
U.S.C. § 3553(a)(1). And in an unlawful-possession charge,
those circumstances include the specific context in which a
defendant possessed the gun. See United States v. Hill, 563
F.3d 572, 579 (7th Cir. 2009) (contrasting, for sentencing
purposes, felon who momentarily holds a friend’s gun to
admire it, with one who keeps gun at home and one day
points it at a police officer). So we see no error in the court’s
consideration that Barrera not only held the gun but tried to
sell it under the table to a fellow gang member—facts that
Barrera admitted in his written plea, at his change-of-plea
hearing, and at sentencing.
As a second example of unsupported inferences, Barrera
spotlights the court’s statements about “this type of traffick-
ing” that leads to guns “all over the place,” often “fired in-
discriminately” and wounding or killing children and inno-
cent people. These comments about the larger consequences
of illegal firearm trafficking, especially among gang mem-
bers, were relevant in assessing the nature and circumstanc-
es of Barerra’s offense and the need to protect the public and
deter unlawful conduct—all of which are factors listed in
§ 3553(a). The judge’s comments were thus an important
part of his explanation for imposing a guideline sentence (as
opposed to granting Barrera’s request for a lower sentence),
and they offer no basis for setting that sentence aside.
AFFIRMED