United States of America v. Brian Arthur Barthman

United States Court of Appeals
For the Eighth Circuit
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No. 19-3268
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United States of America
Plaintiff - Appellee
v.
Brian Arthur Barthman
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: November 20, 2020
Filed: December 17, 2020
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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
Brian Barthman pled guilty to one count of possession of child pornography
involving a prepubescent minor, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2).
In a prior appeal, we vacated his sentence and remanded for resentencing because
the district court committed plain error when it increased his criminal history
category based on his state court convictions. See United States v. Barthman, 919
F.3d 1118, 1120 (8th Cir. 2019) (hereinafter Barthman I). On remand, after denying

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Barthman’s request to withdraw his guilty plea, the district court imposed a sentence
of 151 months imprisonment and supervised release for life. The district court also
imposed a special assessment of $5,000 pursuant to the Justice for Victims of
Trafficking Act of 2015, 18 U.S.C. § 3014. Barthman appeals his sentence, the
imposition of the $5,000 special assessment, and the denial of his motion to
withdraw his guilty plea. Having jurisdiction under 28 U.S.C. § 1291, we affirm
Barthman’s sentence and the denial of his motion to withdraw his plea, but we
reverse the $5,000 special assessment.
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 18 U.S.C. § 2252(a)(4)(B), (b)(2). After considering Barthman’s prior
state court convictions for first- and second-degree criminal sexual conduct, the
district court determined that Barthman’s criminal history category was III, resulting
in a guideline range of 151-188 months imprisonment. Barthman I, 919 F.3d at
1119-20. The district court sentenced Barthman to 151 months, to be served
concurrently with his state sentences for first- and second-degree criminal sexual
conduct. Id. at 1120. On appeal, after the government conceded that the district
court miscalculated Barthman’s criminal history score and that the error was
prejudicial, we concluded that the district court’s error was plain and “seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings.” See
id. at 1121-22 (alteration in original) (quoting Rosales-Mireles v. United States, 138

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S. Ct. 1897, 1909 n.4 (2018)). We therefore vacated Barthman’s sentence and
remanded the case to the district court for resentencing. Id. at 1122.
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 explained the sentence in detail, beginning
by noting that Barthman’s federal and state offenses were serious ones. The court
stated that it considered “all the statutory sentencing factors.” It took into account
Barthman’s “history and characteristics, including the state crime,” noting that
“[t]here are certainly aggravating factors” and that it “[found] them to be very
serious.” The court also stated that “there probably is a need to continue for a time,
anyway, to protect the public from further crimes.” The court expressly considered
the “mitigating circumstances” of Barthman’s behavior and work in prison. It
concluded that the 151-month sentence was “sufficient but not more than necessary.”
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

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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

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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
18 U.S.C. § 3553(a) sentencing factors, including evidence of Barthman’s
postsentencing rehabilitation. The district court ultimately concluded that a sentence
of 151 months imprisonment—which falls in the middle of the guideline range—
was appropriate based on the severity of the crime and the need to protect the public.
Given Barthman’s admission that he possessed over 500 images of child
pornography, including images of prepubescent minors, we cannot say that the
district court abused its discretion in giving more weight to his crime’s severity than
to his postsentencing rehabilitation. “When it comes to weighing the § 3553(a)
factors, . . . the district court has wide latitude to assign some factors greater weight
than others.” Duke, 932 F.3d at 1063 (concluding that district court did not abuse
its discretion in assigning greater weight to severity of crime than defendant’s
postsentencing rehabilitation). Moreover, although “a court at sentencing may
consider evidence of postsentencing rehabilitation, and that evidence may, in an
appropriate case, support . . . a sentence at the bottom of the [guideline]
range[,] . . . a district court is not required to reduce a defendant’s sentence based on
a showing of postsentencing rehabilitation.” Id. (citing Pepper v. United States, 562
U.S. 476, 481, 505 n.17 (2011)). Barthman’s disagreement with the district court’s
balancing of the sentencing factors does not mean the sentence was unreasonable.
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

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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, 18 U.S.C.
§ 3014 (the Act). The Act mandates a $5,000 special assessment for “any non-
indigent person” convicted of certain offenses, including possession of child
pornography. See 18 U.S.C. § 3014 (mandating assessment for non-indigent person
“convicted of an offense under . . . chapter 110 (relating to sexual exploitation and
other abuse of children)”). In United States v. Kelley, we determined that “an
analysis of both a defendant’s current financial situation and his ability to pay in the
future is appropriate in determining his ‘non-indigent’ status.” 861 F.3d 790, 801
(8th Cir. 2017). We review the district court’s factual finding of indigency for clear
error. Id.
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 when
the defendant had a comparable negative net worth. Moreover, given his concurrent
state sentences, Barthman will be nearly 80 years old, if not older, when he is

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released from custody.1 Additionally, he will be a convicted felon with several child
sex offenses on his record. Particularly in light of Barthman’s substantial negative
net worth, it was clearly erroneous to conclude that he has the ability to pay a $5,000
special assessment in the future.2 Indeed, the district court even admitted that the
assessment was “unlikely” to be repaid. Accordingly, we conclude that Barthman
is indigent for purposes of § 3014 and that the district court erred in imposing the
$5,000 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.
1 Barthman was originally sentenced in state court to two consecutive terms of
30 years imprisonment. The Minnesota Supreme Court recently upheld one of
Barthman’s 30-year sentences and remanded the second for resentencing. See State
v. Barthman, 938 N.W.2d 257, 261-62 (Minn. 2020).
2 We note that the Sixth Circuit upheld the special assessment for a defendant
who, at sentencing, had a negative net worth of $1,739 and, upon his release from
prison, would owe an additional $55,000 in restitution and child support. See United
States v. Shepherd, 922 F.3d 753, 756, 760 (6th Cir. 2019). However, we find the
present case distinguishable in two respects. First, Barthman’s liabilities are three
times greater than the Shepherd defendant’s, and second, the Shepherd defendant
will be released from prison “well before he turns 40” and thus has “many years of
future employability.” Id. at 760.

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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.
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