United States v. Brian Barthman ( 2020 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 19-3268
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Brian Arthur Barthman
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Minnesota
    ____________
    Submitted: November 20, 2020
    Filed: December 17, 2020
    ____________
    Before SHEPHERD, STRAS, and KOBES, 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 a prior appeal, we vacated his sentence and remanded for resentencing because
    the district court committed plain error when it increased his criminal history
    category based on his state court convictions. See United States v. Barthman, 
    919 F.3d 1118
    , 1120 (8th Cir. 2019) (hereinafter Barthman I). On remand, after denying
    Barthman’s request to withdraw his guilty plea, the district court imposed a sentence
    of 151 months imprisonment and supervised release for life. The district court also
    imposed a special assessment of $5,000 pursuant to the Justice for Victims of
    Trafficking Act of 2015, 
    18 U.S.C. § 3014
    . Barthman appeals his sentence, the
    imposition of the $5,000 special assessment, and the denial of his motion to
    withdraw his guilty plea. Having jurisdiction under 
    28 U.S.C. § 1291
    , we affirm
    Barthman’s sentence and the denial of his motion to withdraw his plea, but we
    reverse the $5,000 special assessment.
    I.
    While investigating Barthman for sexually abusing a minor, Minnesota law
    enforcement obtained and executed a search warrant at his residence. They
    recovered computers and electronic devices containing numerous images and at least
    one video depicting child pornography. Barthman agreed that he possessed 500
    child pornography images, including images of prepubescent minors under the age
    of 12.
    Following an indictment by a federal grand jury, Bartman 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). After considering Barthman’s prior
    state court convictions for first- and second-degree criminal sexual conduct, the
    district court determined that Barthman’s criminal history category was III, resulting
    in a guideline range of 151-188 months imprisonment. Barthman I, 919 F.3d at
    1119-20. The district court sentenced Barthman to 151 months, to be served
    concurrently with his state sentences for first- and second-degree criminal sexual
    conduct. Id. at 1120. On appeal, after the government conceded that the district
    court miscalculated Barthman’s criminal history score and that the error was
    prejudicial, we concluded that the district court’s error was plain and “seriously
    affect[ed] the fairness, integrity or public reputation of judicial proceedings.” See
    id. at 1121-22 (alteration in original) (quoting Rosales-Mireles v. United States, 138
    -2-
    S. Ct. 1897, 1909 n.4 (2018)). We therefore vacated Barthman’s sentence and
    remanded the case to the district court for resentencing. Id. at 1122.
    After we issued our opinion in Barthman I, Barthman moved the district court
    to withdraw his guilty plea. He argued that he was unaware of certain rights he was
    waiving by pleading guilty and that he had received ineffective assistance of counsel.
    The district court denied Barthman’s motion in a detailed order.
    The district court then held a resentencing hearing. The court determined that
    Barthman’s criminal history category was II, resulting in a guideline range of 135-
    168 months. The government argued for a 135-month sentence in accordance with
    the plea agreement. Barthman requested a below-guidelines sentence, arguing that
    his postsentencing efforts at rehabilitation justified such a sentence. At the hearing,
    defense counsel argued that Barthman had “attempted to turn his life around” in
    prison. Barthman testified regarding his work at various prison jobs, his attendance
    at religious services, and his volunteer tutoring of other prisoners. The government
    argued that Barthman’s positive acts in prison were nonetheless far outweighed by
    the gravity of his crime.
    The district court resentenced Barthman to 151 months imprisonment to run
    concurrently with his state sentences. It explained the sentence in detail, beginning
    by noting that Barthman’s federal and state offenses were serious ones. The court
    stated that it considered “all the statutory sentencing factors.” It took into account
    Barthman’s “history and characteristics, including the state crime,” noting that
    “[t]here are certainly aggravating factors” and that it “[found] them to be very
    serious.” The court also stated that “there probably is a need to continue for a time,
    anyway, to protect the public from further crimes.” The court expressly considered
    the “mitigating circumstances” of Barthman’s behavior and work in prison. It
    concluded that the 151-month sentence was “sufficient but not more than necessary.”
    In deciding to impose the $5,000 special assessment, the district court stated
    that the assessment was “reasonable” and noted its “hope” that Barthman would get
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    out of prison “with [a] sufficient number of years to have an active and productive
    life.” The court opined that the “probation office is getting much better at finding
    good jobs for people who have been incarcerated.” It further noted its belief that
    Barthman “is a very intelligent person.” The court said it was “unlikely that [the
    assessment] would probably be repaid,” but that it had “some potential likelihood of
    being paid, at least part of it.”
    On appeal, Barthman challenges the substantive reasonableness of his
    sentence, the district court’s imposition of the $5,000 special assessment, and its
    denial of his motion to withdraw his guilty plea.
    II.
    Barthman contends that his sentence of 151 months imprisonment is
    substantively unreasonable. We review the substantive reasonableness of a sentence
    for abuse of discretion. United States v. Duke, 
    932 F.3d 1056
    , 1062 (8th Cir. 2019)
    (citing Gall v. United States, 
    552 U.S. 38
    , 51 (2007)). “We presume that a sentence
    within the advisory guideline range is reasonable.” 
    Id.
     “A district court abuses its
    discretion when it (1) ‘fails to consider a relevant factor that should have received
    significant weight’; (2) ‘gives significant weight to an improper or irrelevant factor’;
    or (3) ‘considers only the appropriate factors but in weighing those factors commits
    a clear error of judgment.’” United States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir.
    2009) (en banc) (citation omitted).
    Barthman essentially argues that the district court made an error of the third
    type and that his sentence should have been lower in light of his postsentencing
    rehabilitation. He points out that on resentencing the “aggravating” factors of his
    crime were the same as during the original sentencing but that he produced evidence
    of new mitigating factors: his “exemplary” behavior in prison and efforts to turn his
    life around. He contends that these new mitigating factors tipped the scale such that
    he should have received a lower sentence on remand. Relatedly, he asserts that his
    sentence on remand is substantively unreasonable because it is not proportional to
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    his original sentence. According to Barthman, because his original sentence was at
    the bottom of the then-applied guideline range, his new sentence should similarly be
    at the bottom of the new guideline range. The disproportionate nature of his new
    sentence, he argues, is further exacerbated by his postsentencing rehabilitation.
    We conclude that the district court did not abuse its discretion and that
    Barthman’s sentence was substantively reasonable. The court clearly weighed the
    
    18 U.S.C. § 3553
    (a) sentencing factors, including evidence of Barthman’s
    postsentencing rehabilitation. The district court ultimately concluded that a sentence
    of 151 months imprisonment—which falls in the middle of the guideline range—
    was appropriate based on the severity of the crime and the need to protect the public.
    Given Barthman’s admission that he possessed over 500 images of child
    pornography, including images of prepubescent minors, we cannot say that the
    district court abused its discretion in giving more weight to his crime’s severity than
    to his postsentencing rehabilitation. “When it comes to weighing the § 3553(a)
    factors, . . . the district court has wide latitude to assign some factors greater weight
    than others.” Duke, 932 F.3d at 1063 (concluding that district court did not abuse
    its discretion in assigning greater weight to severity of crime than defendant’s
    postsentencing rehabilitation). Moreover, although “a court at sentencing may
    consider evidence of postsentencing rehabilitation, and that evidence may, in an
    appropriate case, support . . . a sentence at the bottom of the [guideline]
    range[,] . . . a district court is not required to reduce a defendant’s sentence based on
    a showing of postsentencing rehabilitation.” Id. (citing Pepper v. United States, 
    562 U.S. 476
    , 481, 505 n.17 (2011)). Barthman’s disagreement with the district court’s
    balancing of the sentencing factors does not mean the sentence was unreasonable.
    Finally, Barthman’s citation to United States v. Banderas, for the proposition
    that a district court “generally acts within its discretion by imposing an amended
    sentence that is in ‘proportion to the initial sentence,’” is inapposite. See 
    858 F.3d 1147
    , 1149 (8th Cir. 2017) (citation omitted). It does not follow from Banderas that
    a district court abuses its discretion by imposing a new sentence that is “out of
    proportion” to the original sentence in terms of where it falls within the applicable
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    guideline range. Accordingly, we find that Barthman’s sentence was not
    substantively unreasonable.
    III.
    Barthman next asserts that the district court erred in imposing a $5,000 special
    assessment pursuant to the Justice for Victims of Trafficking Act of 2015, 
    18 U.S.C. § 3014
     (the Act). The Act mandates a $5,000 special assessment for “any non-
    indigent person” convicted of certain offenses, including possession of child
    pornography. See 
    18 U.S.C. § 3014
     (mandating assessment for non-indigent person
    “convicted of an offense under . . . chapter 110 (relating to sexual exploitation and
    other abuse of children)”). In United States v. Kelley, we determined that “an
    analysis of both a defendant’s current financial situation and his ability to pay in the
    future is appropriate in determining his ‘non-indigent’ status.” 
    861 F.3d 790
    , 801
    (8th Cir. 2017). We review the district court’s factual finding of indigency for clear
    error. 
    Id.
    We find that the district court clearly erred in its implicit finding that
    Barthman was non-indigent and thus in imposing the special assessment.
    Barthman’s Presentence Investigation Report (PSR), which the district court
    adopted in full and to which the government lodged no objections, establishes that
    he has a negative net worth of $166,903. His liabilities total more than $171,000,
    including $133,000 in student loan debt. He has an individual IRA worth $5,000
    and few other assets. We think the district court clearly erred in not accounting for
    Barthman’s substantial negative net worth when it found he had the ability to pay in
    the future. Barthman’s net worth plainly distinguishes his case from Kelley, where
    the defendant had only a “slightly negative net worth at the time of sentencing.” See
    
    id. at 802
    . We could find no prior case where we upheld a special assessment when
    the defendant had a comparable negative net worth. Moreover, given his concurrent
    state sentences, Barthman will be nearly 80 years old, if not older, when he is
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    released from custody. 1 Additionally, he will be a convicted felon with several child
    sex offenses on his record. Particularly in light of Barthman’s substantial negative
    net worth, it was clearly erroneous to conclude that he has the ability to pay a $5,000
    special assessment in the future. 2 Indeed, the district court even admitted that the
    assessment was “unlikely” to be repaid. Accordingly, we conclude that Barthman
    is indigent for purposes of § 3014 and that the district court erred in imposing the
    $5,000 special assessment.
    IV.
    Finally, we consider Barthman’s challenge to the district court’s denial of his
    motion to withdraw his guilty plea, which he raised in a pro se supplemental brief.
    We “review[] the denial of a motion to withdraw a plea for an abuse of discretion.”
    United States v. Cruz, 
    643 F.3d 639
    , 641 (8th Cir. 2011). We have carefully
    reviewed the record, and for the reasons stated by the district court, see R. Doc. 134,
    we conclude that it did not abuse its discretion in denying Barthman’s motion. See
    8th Cir. R. 47B.
    1
    Barthman was originally sentenced in state court to two consecutive terms of
    30 years imprisonment. The Minnesota Supreme Court recently upheld one of
    Barthman’s 30-year sentences and remanded the second for resentencing. See State
    v. Barthman, 
    938 N.W.2d 257
    , 261-62 (Minn. 2020).
    2
    We note that the Sixth Circuit upheld the special assessment for a defendant
    who, at sentencing, had a negative net worth of $1,739 and, upon his release from
    prison, would owe an additional $55,000 in restitution and child support. See United
    States v. Shepherd, 
    922 F.3d 753
    , 756, 760 (6th Cir. 2019). However, we find the
    present case distinguishable in two respects. First, Barthman’s liabilities are three
    times greater than the Shepherd defendant’s, and second, the Shepherd defendant
    will be released from prison “well before he turns 40” and thus has “many years of
    future employability.” 
    Id. at 760
    .
    -7-
    V.
    For the foregoing reasons, we affirm Barthman’s sentence and the denial of
    his motion to withdraw his guilty plea, and we vacate the imposition of the $5,000
    special assessment.
    ______________________________
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Document Info

Docket Number: 19-3268

Filed Date: 12/17/2020

Precedential Status: Precedential

Modified Date: 12/17/2020