United States of America v. Brian Barner

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1041
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UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN BARNER,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 97-cr-00207)
District Judge: Honorable Malcolm Muir
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Submitted Under Third Circuit LAR 34.1(a)
October 29, 2009
Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges.
(Filed: October 29, 2009)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Brian Barner appeals the District Court’s partial denial of his motion for sentence
reduction pursuant to 18 U.S.C. § 3582(c). We will affirm.

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I.
Because we write for the parties, we recount only those facts necessary to our
decision.
Barner pleaded guilty in 1998 to conspiracy to distribute and possess with intent to
distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846, and
possession with intent to distribute more than 300 grams of cocaine in violation of 21
U.S.C. § 841(a)(1). Barner’s offense level was 40 and his criminal history category was
IV, yielding a Guidelines range of 360 months to life imprisonment. The District Court
sentenced Barner to 420 months imprisonment.
On November 1, 2007, the Sentencing Commission promulgated Amendment 706,
which amended the Drug Quantity Table in USSG § 2D1.1(c). Amendment 706 provides
a two-level reduction in base offense level for certain crack-cocaine offenses. The
Commission made this amendment retroactive, effective March 3, 2008. See U.S.
SENTENCING GUIDELINES MANUAL app. C, amend. 713 (2008).
After Amendment 706 was made retroactive, Barner moved for a reduced sentence
pursuant to 18 U.S.C. § 3582(c)(2). In addition to arguing that his revised offense level
should be 38, Barner sought to relitigate his criminal history calculation, arguing that the
District Court miscalculated his criminal history during the initial sentencing. The
District Court found that it lacked authority to reconsider Barner’s criminal history

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The District Court had jurisdiction to review Barner’s motion for sentence1
modification pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
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calculation, but recalculated his Guidelines range to be 324 to 405 months pursuant to his
reduced offense level. The court then resentenced Barner to 378 months imprisonment.
Barner now appeals, arguing that the District Court misconstrued its authority to
reconsider his criminal history category and failed to meaningfully consider the factors
listed in 18 U.S.C. § 3553(a) during his resentencing. 1
II.
We begin with Barner’s assertion that the District Court erroneously concluded
that it lacked authority to reconsider the calculation of his criminal history category. We
review de novo a district court’s interpretation of statutory requirements, including the
Sentencing Guidelines. United States v. Williams, 344 F.3d 365, 377 (3d Cir. 2003).
Barner argues that the District Court erred during his initial sentencing when it
included two retail theft convictions and determined his criminal history to be category
IV. Although Barner’s counsel did not object to this calculation, he now argues in his
§ 3582 motion that this calculation was erroneous and that his criminal history should
have been category III.
Pursuant to § 3582(c), sentencing courts are authorized to modify a previously
imposed sentence of imprisonment only under certain enumerated circumstances. United
States v. Higgs, 504 F.3d 456, 461 (3d Cir. 2007). One of those circumstances is

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provided in § 3582(c)(2), which authorizes district courts to modify “a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission . . . .” The Sentencing Commission has explained: “[i]n a case in
which a defendant is serving a term of imprisonment, and the guideline range applicable
to that defendant has subsequently been lowered as a result of an amendment to the
Guidelines Manual . . . the court may reduce the defendant’s term of imprisonment as
provided by 18 U.S.C. § 3582(c)(2).” USSG § 1B1.10(a)(1). Therefore, in Barner’s case,
the District Court was entitled to revisit his sentence in light of Amendment 706, which
reduced the offense level for his offense of conviction.
The court’s authority to revisit a sentence previously imposed is not unlimited,
however. The Guidelines make clear that “proceedings under 18 U.S.C. § 3582(c)(2) . . .
do not constitute a full resentencing of the defendant.” USSG § 1B1.10(a)(3); see also
United States v. Faulks, 201 F.3d 208, 210 (3d Cir. 2000) (distinguishing between a full
resentencing and a proceeding under 18 U.S.C. § 3582(c)(2)). Instead, sentencing courts
are instructed to “substitute only the [retroactive] amendments . . . for the corresponding
guideline provisions that were applied when the defendant was sentenced and . . . leave
all other guideline application decisions unaffected.” USSG § 1B1.10(b)(1) (emphasis
added); see United States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002) (“only the
retroactive amendment is to be considered at a resentencing under § 3582”).

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Thus, in Barner’s case, the District Court was limited to ascertaining Barner’s
Guidelines range had Amendment 706 been in place during his initial sentencing. The
District Court lacked authority to reconsider its initial criminal history calculation or any
other component of Barner’s initial sentence that was not affected by a retroactive
amendment. Cf. United States v. Mateo, 560 F.3d 152, 156 (3d Cir. 2009) (holding that
the district court lacked authority to revisit the application of the career offender
enhancement in a § 3582 motion because that enhancement was not affected by a
retroactive amendment). Accordingly, the District Court did not err in refusing to
consider Barner’s arguments with regard to his initial criminal history calculation.
III.
Barner also argues that the District Court failed to properly consider the § 3553(a)
factors when it imposed a sentence of 378 months imprisonment, which was sixteen
percent above the midpoint of his Guidelines range. See United States v. Clark, 563 F.3d
722, 724 (8th Cir. 2009) (“the relevant § 3553(a) factors still guide the decision to modify
a sentence and the selection of an appropriate, amended sentence within the new range”).
We review this claim for abuse of discretion, Gall v. United States, 128 S. Ct. 586, 597
(2007), and must ensure that the District Court committed no significant procedural error,
such as failing to consider the § 3553(a) factors. United States v. Wise, 515 F.3d 207, 217
(3d Cir. 2008).

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We note that the same judge presided over both the 1998 and 2008 sentencing2
hearings and displayed a familiarity with the defendant.
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Though motions for sentence reduction under § 3582 do not constitute “full
resentencings,” USSG § 1B1.10(a)(3), sentencing courts still must apply the § 3553(a)
factors when determining a defendant’s modified sentence. 18 U.S.C. § 3582(c)(2) (“the
court may reduce the term of imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable”); see also USSG. § 1B1.10 cmt.
n.1(B)(i) (“Consistent with § 3582(c)(2), the court shall consider the factors set forth in
18 U.S.C. § 3553(a) in determining: (I) whether a reduction in the defendant’s term of
imprisonment is warranted; and (II) the extent of such reduction . . . .”). Barner alleges
that the District Court did not properly consider the § 3553(a) factors because it merely
“incorporate[ed] by reference” the analysis it undertook at the initial sentencing hearing
in 1998 without discussing how each § 3553(a) factor informed the sentence.
Barner’s allegations are unsupported by the record. We disagree that the District
Court’s review of the § 3553(a) factors consisted of a “mere listing” of the factors and an
“incorporation by reference” of the court’s 1998 sentencing hearing. Although the
District Court referenced the 1998 sentencing hearing, it did not rely upon that hearing to
the extent Barner alleges. The District Court discussed both the nature and circumstances
of Barner’s offense—which involved a substantial amount of drugs as well as an attempt
to recruit another person to execute two witnesses in his case—as well as Barner’s history
and characteristics. The District Court cited the § 3553(a) factors, acknowledged that it2

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had “thoroughly reviewed” the sentencing briefs submitted by the parties, and discussed
the sentences recommended by the respective parties. As the Supreme Court
acknowledged in United States v. Rita, 551 U.S. 338 (2007), “The appropriateness of
brevity or length, conciseness or detail, when to write, what to say, depends upon
circumstances. . . . [S]ometimes a judge rel[ies] upon context and the parties’ prior
arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s
own professional judgment.” Id. at 356. Moreover, a within-Guidelines sentence
typically will require less justification than a sentence outside the Guidelines. Id. at 347.
Because we find that “the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a),” United States v. Grier,
449 F.3d 558, 574 (3d Cir. 2006), we are convinced the District Court did not abuse its
discretion in resentencing Barner.
IV.
Finally, Barner challenges the District Court’s use of a drug amount that was in
excess of the amount to which he pleaded in determining his sentence. Barner argues that
the District Court violated his Fifth and Sixth Amendment rights because the drug amount
used in sentencing was neither charged in the indictment nor admitted at his guilty plea or
proved to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). As Barner concedes, this argument is foreclosed by the Supreme Court’s holding

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in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and our decision in
United States v. Coleman, 451 F.3d 154, 159-60 (3d Cir. 2006).
V.
Given the limitations on the District Court’s authority prescribed by § 3582(c) and
the Sentencing Commission, the District Court properly confined its review of Barner’s
sentence. After calculating the appropriate Guidelines range, the court sufficiently
discussed the § 3553(a) factors in sentencing Barner to a within-Guidelines sentence of
378 months imprisonment. Accordingly, we will affirm.

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