United States v. Robert Barber, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 20-2114
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Robert Earl Barber, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 12, 2021
Filed: July 20, 2021
[Published]
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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PER CURIAM.
Robert Earl Barber Jr. pleaded guilty to two felonies. His sentence included a
term of supervised release. Barber violated the conditions of his release several times,
resulting in two separate revocations of his supervised release. Upon the second
revocation, the district court1 imposed a sentence of 7 months’ imprisonment and 60
months’ supervised release. On appeal, Barber argues that the additional term of
supervised release was substantively unreasonable. We affirm.
I. Background
Barber pleaded guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1), and to possessing cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a) and (b)(1)(B). He received a total sentence of 120
months’ imprisonment and 96 months of supervised release. Barber’s supervised
release began in October 2017, but he violated the conditions of his release several
times over the next two years. In October 2019, the district court revoked his
supervised release and imposed a new sentence of 3 months’ imprisonment and 48
months of supervised release.
Barber’s second term of supervised release began in December 2019, but it was
short-lived. In February 2020, Barber violated the conditions of his release by
“associating with persons engaged in criminal activity.” Order Granting Mot. to
Modify Conditions of Supervision at 1, United States v. Barber, No.
3:08-cr-00070-JAJ-SBJ-1 (S.D. Iowa 2020), ECF No. 125. The district court then
modified the conditions of his release by requiring him to reside in a residential
reentry center for up to 120 days. While at the reentry facility, Barber again violated
the conditions of his release by breaking several of the facility’s rules: He consumed
alcohol, failed to submit to a breathalyser test, and disobeyed a lawful order.
The district court revoked Barber’s supervised release a second time. When
Barber’s counsel told the court that Barber’s requested sentence would depend on
whether the court would impose an additional term of supervised release, the district
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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court replied that it was “not going to reward him here today for bad behavior by
shortening his term of supervised release.” Revocation Hr’g Tr. at 6, United States
v. Barber, No. 3:08-cr-00070-JAJ-SBJ-1 (S.D. Iowa 2020), ECF No. 146. The district
court imposed a 7-month prison sentence and 60 months of supervised release.
II. Discussion
Barber challenges the substantive reasonableness of his 60-month term of
supervised release.2 “Because a sentence imposed upon revocation of supervised
release is not a new punishment but rather relates to the original offense, we review
that question under the same deferential abuse-of-discretion standard that applies to
initial sentencing proceedings.” United States v. Richey, 758 F.3d 999, 1001 (8th Cir.
2014) (cleaned up).
We begin by determining what term of supervised release the district court was
authorized to impose.
If a defendant violates the conditions of his supervised release, a district
court, under [18 U.S.C.] § 3583, is permitted “to impose both
imprisonment and a new term of supervised release if the new term does
‘not exceed the term of supervised release authorized by statute for the
offense that resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of supervised
release.’”
United States v. Walker, 513 F.3d 891, 893 (8th Cir. 2008) (emphasis omitted) (first
quoting United States v. Palmer, 380 F.3d 395, 396 (8th Cir. 2004) (en banc); then
quoting 18 U.S.C. § 3583(h)).
2
Barber does not contest the revocation of his supervised release or the 7-month
term of incarceration.
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Here, Barber’s original authorized term of supervised release was 96 months
because he had a prior felony drug offense at the time of sentencing. See 21 U.S.C.
§ 841(b)(1)(B) (stating that “any sentence imposed under this subparagraph shall, . . .
if there was such a prior conviction [for a felony drug offense], include a term of
supervised release of at least 8 years in addition to such term of imprisonment”).
Barber received a term of imprisonment upon each revocation of supervised
release—three months the first time and seven months the second time. Subtracting
these terms of imprisonment (totaling 10 months) from the authorized term of
supervised release under the statute of conviction (96 months) leaves 86 months.
Thus, pursuant to § 3583(h), the district court was authorized to impose a new term
of supervised release of up to 86 months. See Walker, 513 F.3d at 893.
We next turn to the question of whether the 60-month term of supervised
release, despite being authorized, was substantively reasonable. When determining
the appropriate length of a term of supervised release, a court is required to consider
certain of the sentencing factors set forth in 18 U.S.C. § 3553(a).3 18 U.S.C.
§ 3583(c). “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. Borromeo, 657 F.3d 754, 756 (8th Cir. 2011) (quoting United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). “The district court has wide
latitude to weigh the § 3553(a) factors in each case and assign some factors greater
weight than others in determining an appropriate sentence.” United States v.
Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per curiam) (quoting United States v.
Bridges, 569 F.3d 374, 379 (8th Cir. 2009)).
3
“The court . . . shall consider the factors set forth in [§] 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(c).
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Barber acknowledges that the district court considered the appropriate
§ 3553(a) factors but argues that it gave significant weight to an improper factor.
Specifically, he contends that the district court improperly considered punishment as
a factor when choosing a term of supervised release because it said it was “not going
to reward him . . . for bad behavior by shortening his term of supervised release.”
Revocation Hr’g Tr. at 6. Barber misconstrues the district court’s words. The district
court did not say that it was punishing Barber by lengthening his term of supervised
release; rather, it said that it would not reward him for bad behavior by shortening the
term. The district court’s decision to impose a period of supervised release within the
statutory range does not equate to imposition of improper punishment merely because
the court stated that it would not reward bad behavior. Barber’s multiple violations
of his supervised-release terms warranted imposition of an additional period of
supervised release. Moreover, we have upheld revocation sentences in which the
district court expressed a similar reluctance to “reward . . . bad behavior” by lowering
a term of supervised release during a revocation sentence. See e.g., United States v.
Hajek, 638 F. App’x 581, 582 (8th Cir. 2016) (unpublished per curiam); United States
v. Houle, 630 F. App’x 642, 644 (8th Cir. 2016) (unpublished per curiam).
Barber’s sentence was not substantively unreasonable. The district court was
authorized to impose as much as 86 months of supervised release, but it imposed 60
months. In fashioning an appropriate sentence, it had wide latitude to weigh the
§ 3553(a) factors, see Townsend, 617 F.3d at 994, and was thus entitled to focus in
particular on “the offense of conviction, his problems on supervised release, [and] the
nature of the problems while on supervised release.” Revocation Hr’g Tr. at 7–8.
These were reasonable considerations in light of Barber’s consistent resistance to
complying with the conditions of his release and the multiple revocations of his
release. We find no abuse of discretion.
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III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment.
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