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

Defendant Brian Barthman pled guilty to possession of child pornography (18 U.S.C. § 2252) and received offense level 32.
The district court assigned six criminal-history points based on two prior Minnesota convictions for first- and second-degree criminal sexual conduct, treating them as a single sentence for crimes of violence, yielding CH category III and a Guidelines range of 151–188 months.
Barthman argued on appeal he should have received only three criminal-history points (CH category II), producing a lower Guidelines range (135–168 months).
The government conceded the Minnesota statutes are broader than the federal comparator (Minn. Stat. §§ 609.342-.343 reach victims under 13 while 18 U.S.C. § 2241(c) covers victims under 12) and that the district court miscalculated the criminal-history score, but urged no resentencing.
The panel assumed forfeiture and applied plain-error review, found the error plain and prejudicial, rejected the government’s contention that concurrent state time made correction unnecessary (state sentence not final), and vacated and remanded for resentencing.

Issue	Barthman’s Argument	Government’s Argument	Held
Whether prior Minnesota convictions were properly scored as crimes of violence for §4A1.1 points	Only three points applicable; Minnesota statutes overbroad compared to federal §2241(c) so convictions do not qualify as forcible sex offenses	Initially treated as qualifying; later conceded the statutes are overbroad but argued no relief needed	Error in scoring was plain and prejudicial; miscalculation requires vacatur and remand for resentencing
Preservation/standard of review (forfeiture vs waiver)	Even if not objected to, plain-error review applies	Argued error was not "plain" because not raised below	Court assumed forfeiture, reviewed for plain error and found error plain
Whether the fourth prong of plain-error review (discretion to remedy) is satisfied given a concurrent state sentence	Concurrent state sentence not final; possibility state sentence may be shortened/vacated so federal miscalculation could increase total time	Contended concurrency meant federal error unlikely to increase actual custody time, so no remedy needed	Court exercised discretion to correct error because state proceedings were not final and relief was reasonably likely to affect total time served

Gall v. United States, 552 U.S. 38 (sentencing-procedure standard)
United States v. Olano, 507 U.S. 725 (plain-error framework)
Puckett v. United States, 556 U.S. 129 (four-prong plain-error test)
Rosales-Mireles v. United States, 138 S. Ct. 1897 (ordinary-case rule for plain Guidelines errors)
Henderson v. United States, 568 U.S. 266 (plain-error assumptions re: objections)
Johnson v. United States, 520 U.S. 461 (meaning of "plain")
United States v. Schneider, 905 F.3d 1088 (8th Cir.) (state statute broader than federal definition defeats counting conviction)
United States v. Blocker, 612 F.3d 413 (5th Cir.) (straightforward Guidelines application shows plain error)
United States v. Campbell, 764 F.3d 874 (8th Cir.) (plain-error review for unpreserved Guidelines objections)
United States v. Vonn, 535 U.S. 55 (plain-error and Vonn discussion)
United States v. Nahia, 437 F.3d 715 (8th Cir.) (defendant’s burden on plain-error review)