United States of America v. Kenneth E. Barbee, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 21-2413
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United States of America
Plaintiff - Appellee
v.
Kenneth E. Barbee, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 14, 2022
Filed: August 18, 2022
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Before LOKEN, KELLY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
A jury convicted Kenneth Barbee, Jr. of being a felon in possession of a
firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Barbee challenges the admission of his
prior felony firearm conviction under Federal Rule of Evidence 404(b). He also
appeals the procedural and substantive reasonableness of his sentence. We affirm.

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I.
While surveilling Barbee’s house in connection with a felony probation
violation warrant, officers saw two people leave and drive away in Barbee’s Ford
Fiesta. Despite the driver’s attempt at evasion, the officers pulled over the car and
its two occupants. Christina Cable, the driver, had a handgun in her pocket. Barbee
was in the passenger seat with two loaded handguns at his feet.
Barbee was charged with one count of being a felon in possession of a firearm.
The Government moved in limine to admit evidence that Barbee had a 2008
conviction involving a gun—a second degree assault for shooting someone in a
domestic dispute. The district court1 allowed the evidence but gave a limiting
instruction that it could only be considered for knowledge, intent, or mistake—not
as evidence of guilt. The Government asked a detective just two questions about the
prior conviction:
Q: Detective Manley, in the course of your investigation, did you
learn that the defendant had previously been convicted of a
felony offense involving a firearm?
A: Yes.
Q: And, specifically, did you learn that the defendant pled guilty to
that offense on March 14th of 2008?
A: That’s correct.
In its closing statement, the Government briefly referenced the prior conviction and
reminded the jury that it could consider it as evidence of knowledge, intent, or lack
of mistake. The jury returned a guilty verdict.
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

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The Presentence Report noted Barbee’s childhood trauma; severe mental
illness; the recent deaths of his mother and sister; and his behavior (both good and
bad) while in custody awaiting sentencing. At sentencing, defense counsel argued
that Barbee’s mental illness was a significant mitigating factor. Counsel also told
the court that, while in custody before sentencing, Barbee intervened to stop other
inmates from attacking a corrections officer. As a result of his “heroic” deed, Barbee
claimed that he had become a target for other inmates, and counsel argued that the
court should consider alternatives to prison. During allocution, Barbee accused the
arresting officers of planting the gun evidence. The district court took this allegation
seriously, calling a recess so it could review notes and evidence from the arrest and
trial to ensure that Barbee had not raised the issue earlier. After confirming that the
accusation was not credible and reciting the final Guidelines calculations, the court
announced a 120-month prison sentence, the statutory maximum. The Government
prompted the court to address the § 3553(a) factors, and the court added:
Yes. This is a guideline sentence. It is the highest legal sentence
of 120 months, although it could be viewed as being middle of the
guideline sentence of the normally 110 to 137 months. And it is based
on the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law, to adequately
deter Mr. Barbee from any further criminal conduct, and to protect the
public from further crimes of the defendant.
In considering the 18 U.S.C. [§] 3553 sentencing factors, a
sentence of 120 months would be given regardless of the guideline
range and would be given regardless of the confusing statements made
earlier today regarding the gun being moved by law enforcement at the
time of his arrest. I think that is not as clear as I recalled it. And that

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didn’t affect the sentence—it couldn’t affect the sentence because I
couldn’t sentence more than 120 months.
Defense counsel again objected to the court denying a downward variance.
II.
Barbee first challenges the admission of his 2008 conviction as improper
propensity evidence. “We review the district court’s admission of evidence of past
crimes under Federal Rule of Evidence 404(b) for abuse of discretion, and we will
not reverse unless the evidence clearly had no bearing on the case and was
introduced solely to prove the defendant’s propensity to commit criminal acts.”
United States v. Smith, 978 F.3d 613, 616 (8th Cir. 2020) (citation omitted). Even
if we find an abuse of discretion, we will not reverse if the error was harmless.
United States v. Aldridge, 664 F.3d 705, 714 (8th Cir. 2011).
Even assuming for the sake of argument that evidence of the prior crime was
inadmissible, any error was harmless. The Government asked the witness only two
vague questions about the prior conviction and mentioned it in passing during
closing argument. The district court gave a limiting instruction when the evidence
was introduced, telling the jury that it could only be used to show knowledge, intent,
or absence of mistake, and not as evidence of guilt. The prosecutor repeated the
limiting guidance in her closing argument. And the jury had ample evidence to
support its verdict even without the evidence—including a recording from the post-
arrest interview in which Barbee admitted that he handled the guns.
III.
Barbee next argues that the district court procedurally erred by failing to
conduct a meaningful § 3553(a) analysis and by failing to explain its reasons for
rejecting a downward variance and imposing the statutory maximum. When
reviewing the procedural reasonableness of a sentence, we review findings of fact

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for clear error and the application of the Guidelines de novo. United States v. Lara-
Ruiz, 781 F.3d 919, 922 (8th Cir. 2015). “A district court commits significant
procedural error . . . if it fails to consider the § 3553(a) factors or fails to adequately
explain the chosen sentence.” United States v. Gray, 533 F.3d 942, 943 (8th Cir.
2008) (citation omitted).
Barbee first argues that the district court did not give enough consideration to
the § 3553(a) factors when deciding his sentence. “[I]n determining whether the
district court considered the relevant factors in a particular case, the context for the
appellate court’s review is the entire sentencing record, not merely the district
court’s statements at the hearing.” Id. at 944 (citation omitted). Based on the record
as a whole, particularly the court’s engagement with each side’s arguments at
sentencing, we are satisfied that the district court was aware of and adequately
considered the § 3553(a) factors.
Barbee also says that the district court erred by failing to relate the Guidelines
to him or his offense. The bar is not high for the adequacy of the court’s explanation
when it imposes a within-Guidelines sentence. A judge must “state in open court
the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). But
“[w]hen a judge decides simply to apply the Guidelines to a particular case, doing
so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S.
338, 356 (2007). “Where a sentencing judge imposes a sentence within the advisory
guideline range, circumstances may well make clear that the judge believed the case
was typical and rested his decision upon the Commission’s own reasoning that the
Guidelines sentence is a proper sentence.” Gray, 533 F.3d at 944 (citation omitted)
(cleaned up).
As with any defendant, Barbee’s case and personal history involve a variety
of influences and factors that are not necessarily present in every felon in possession
case. But nothing makes Barbee an atypical defendant. Under our precedent, the
court’s no-frills explanation for its within-Guidelines sentence was adequate.

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IV.
Finally, Barbee argues that his sentence is substantively unreasonable. “We
review the substantive unreasonableness of sentences under . . . an abuse-of-
discretion standard.” United States v. Edwards, 820 F.3d 362, 366 (8th Cir. 2016)
(citation omitted). “The sentencing 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 the appropriate
factors but commits a clear error of judgment in weighing them.” United States v.
Corey, 36 F.4th 819, 823 (8th Cir. 2022) (citation omitted). A within-Guidelines
sentence is presumptively reasonable. Id.
Barbee fails to overcome this presumption of reasonableness. The court made
it clear that Barbee’s accusation that evidence was planted did not influence its
sentencing decision. Barbee argues that his mitigating factors—his mental illness
and “heroic” behavior in prison—warrant a shorter sentence. But he has not shown
that these considerations obviously and significantly outweigh factors favoring a
longer sentence—his violent criminal history and the danger to the public posed by
an individual who feels the need to keep guns to protect himself. The sentence is
not substantively unreasonable.
V.
For the foregoing reasons, we affirm.
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