United States of America v. Brian Arthur Barthman
No. 19-3268
United States Court of Appeals For the Eighth Circuit
December 17, 2020
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.
Brian Barthman pled guilty to one count of possession of child pornography involving a prepubescent minor, in violation of
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
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
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 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 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
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 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,
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
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.
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.