USA v. Johnny Barbour

Filing

OPINION filed : the sentence imposed by the district court is AFFIRMED, decision not for publication. Gilbert S. Merritt, David W. McKeague (Authoring), and Helene N. White, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0721n.06
Case No. 14-6217
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNNY L. BARBOUR,
Defendant-Appellant.

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FILED
Oct 28, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

OPINION

BEFORE: M ERRITT, McKEAGUE, and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge.

Johnny Barbour was sentenced to 87 months’

imprisonment for unlawfully possessing ammunition after his initial 188 month sentence was
vacated. During resentencing, the district court provided a limited explanation for Barbour’s
sentence, but referenced and incorporated its more thorough explanation from Barbour’s initial
sentencing. It also implicitly considered and rejected Barbour’s arguments for a lower sentence
within the Guidelines. Barbour challenges procedural and substantive aspects of his sentence.
Both his procedural unreasonableness and substantive unreasonableness claims fail.
Accordingly, we affirm the sentence imposed by the district court.

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I
On October 13, 2010, defendant Johnny Barbour shot Michael Kilgore after an
altercation between the two occurred while Kilgore was giving Barbour a ride in his car after the
two met at a bar in Chattanooga, Tennessee. At trial in Tennessee state court, Barbour testified
that Kilgore attacked him and that he shot Kilgore in self-defense. A jury acquitted Barbour of
several state charges, including attempted murder. The gun Barbour used in the altercation was
never recovered, but a spent .380 caliber shell from Barbour’s weapon was found at the scene of
the shooting. Barbour subsequently pleaded guilty to violating 18 U.S.C. §922(g)(1)—felon in
possession of ammunition.
Barbour had a prior drug conviction and three prior aggravated robbery convictions.
R. 10-1, Presentence Invest. Report at 6–7, ¶¶ 26–27, 31, Page ID 6–7. Because of these
convictions, Barbour was initially deemed an armed career criminal under 18 U.S.C. § 924(e),
the Armed Career Criminal Act (“ACCA”). Id. He faced a statutory mandatory minimum
sentence of fifteen years’ imprisonment with an advisory Guidelines range of 180 to 188 months’
imprisonment. Id.
Barbour objected to his designation as an armed career criminal, arguing that his two
prior aggravated robberies should be counted as a single predicate offense because they were part
of one criminal spree.1 R. 24, Initial Sentencing Memo. at 2–3, Page ID 45–46. The district
court disagreed and applied the armed-career-criminal designation. Barbour was then sentenced
to 188 months’ imprisonment, the top of the Guidelines range. The district court explained that
Barbour had “built up quite a history of violent activities” and the maximum recommended

1

Barbour and three accomplices planned to rob a convenience store. On their way inside, they robbed a person who
was sitting in his vehicle in front of the store. Barbour and his accomplices then robbed the clerk inside the store at
gunpoint. R. 43, Second Revised PSR at 6, Page ID 146.

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sentence was necessary “to protect the public from future crimes of the defendant” because he
had “been involved in a number of incidents involving firearms and shootings.” Id. at 95, 98.
Barbour appealed his armed-career-criminal designation in 2013, maintaining his position
that his prior aggravated robberies should be a single predicate offense. We agreed that Barbour
was “not subject to the [armed-career-criminal] enhancements of 18 U.S.C. § 924(e)(1),” and
remanded to the district court for resentencing. United States v. Barbour, 750 F.3d 535, 546 (6th
Cir. 2014). On remand, the probation officer recalculated Barbour’s Guidelines range without
the ACCA enhancement to be 70–87 months.
During resentencing, Barbour argued that a sentence on the lower end of his revised 70–
87 month Guideline range was appropriate. In support of this argument, Barbour emphasized
three points: (1) his criminal activity appeared more extensive than it truly was because of the
close time period between his crimes and that all of his criminal history occurred on just three
separate days;2 (2) he continued to maintain frequent contact with his children; and (3) his
progress toward earning a General Education Development Diploma and work in the prison
kitchen indicated that he was assuming responsibility for his actions. R. 39, Sentencing Memo.
at 1–3, Page ID 126–28.
The government argued for a sentence of 87 months, addressing the deterrent value of a
longer sentence and the need to protect the public. R. 48, Resentencing Tr. at 8–9, Page ID 221–
22.

The government emphasized the violent nature of Barbour’s three prior aggravated

robberies, noting that his current offense—felon in possession of ammunition—was the result of

2

On February 11, 2003, Barbour was arrested for possession and exchange of a controlled substance and possession
of a dangerous weapon. On November 21, 2003, Barbour committed three aggravated robberies by robbing a clerk
and a customer at one convenience store and a clerk at another (see supra, Section I at 2 n.1). On October 10, 2010,
Barbour engaged in the self-defense shooting of Michael Kilgore which led to his instant conviction for felon in
possession of ammunition. R. 39, Page ID 126–27.

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illegally possessing and discharging a firearm only eight months after being released from
prison. Id. at 221. To reiterate Barbour’s involvement with firearms, the government referenced
the shooting of Michael Kilgore: “So, the jury did rule it was self-defense, but Mr. Barbour had
been out to the club with these people. He had been carrying this gun the whole time before he
ended up shooting these people . . . .” Id. at 221–22. Directly after Barbour and the government
presented their sentencing arguments, the sentencing judge referenced Barbour’s plea for a
lower-end Guidelines sentence by asking the government whether it “[had] any information as to
how [Barbour] has adjusted while in prison[.]” R. 48, Resentencing Tr. at 9, Page ID 222. The
government responded that it did not. Id. at 222–23.
The district court provided a very brief explanation during Barbour’s resentencing and
did not mention 18 U.S.C. § 3553(a) or any of its factors:
This matter is back before the Court as a result of action by the Circuit Court. The
Court in viewing the evidence before it deemed a sentence of 188 months
appropriate under the guidelines. The Court does not have that option anymore.
The only way that the Court could reach that sentence [would be] to impose a
non-guideline sentence in this case based upon the facts and, although, that might
be something the Court could do, the Court is not going to do that, rather, the
Court will stay within the guidelines here. And the Court will impose a sentence
at the 87 month point.
R. 48, Resentencing Tr. at 10, Page ID 223. The district court, however, resentencing Barbour
only fourteen months after his initial sentence, incorporated its rationale from Barbour’s first
sentencing hearing by noting that “the reasons that the Court gave for the previous judgment are,
obviously, the reasons that the Court gives for this sentence.” Id. at 224. In Barbour’s initial
sentencing hearing, the district court provided a thorough explanation for sentencing Barbour to
the then top-of-the-Guidelines range of 188 months:
The Court having considered arguments of counsel, the statement of the
defendant, the nature and circumstances of the offense, the history and
background of the defendant, the advisory guideline range we have here, as well
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as the Section 3553(a) factors, it is the judgment of the Court that the defendant
be committed to the custody of the Bureau of Prisons to be imprisoned for a term
of 188 months . . . The Court has decided to impose the sentence that it did to
protect the public from future crimes of the defendant. As the Court alluded to
earlier, Mr. Barbour has been involved in a number of incidents involving
firearms and shootings. He was shot once in 2002, according to the presentence
report. And according to the presentence report, also, he was involved in a
shootout with police officers after a robbery. And [his counsel] alluded to another
shooting where he was acquitted in state court. That’s an awful lot of shootings
for a very young man who is only 31 years old. Such a sentence also reflects the
seriousness of the offense and affords adequate deterrence to this type of criminal
activity.
R. 31, Initial Sent. Tr. at 18–20, Page ID 96–98 (emphasis added).
After imposing Barbour’s sentence of 87 months during the resentencing, the sentencing
judge asked whether the parties had “any objections to the sentence that the Court just imposed
that have not previously been raised?” R. 48, Resentencing Tr. at 12, Page ID 225. Neither
Barbour’s counsel nor the government raised any objections. Id.
Barbour contends that his resentencing was procedurally unreasonable because the
district court did not mention any § 3553(a) factors and failed to explicitly reject his arguments
for a lesser sentence. He further argues that, even if the district court’s explanation from the first
sentencing hearing is incorporated by reference into his resentencing hearing, the explanation
does not adequately assess his arguments for a lesser sentence because the arguments were made
only after his initial sentencing. Barbour finally contends that his sentence is substantively
unreasonable because the district court may have based the sentence on his acquitted conduct in
the shooting of Michael Kilgore.
II
Barbour failed to raise his procedural challenges when given the opportunity to object at
sentencing. Therefore, we review his claims of procedural unreasonableness only for plain error.

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United States v. Lumbard, 706 F.3d 716, 720 (6th Cir. 2013).3 Barbour’s claim regarding the
potential consideration of his acquitted conduct is a substantive unreasonableness challenge and
we review for abuse of discretion. Id. at 721.
In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court addressed the outer
contours of a “sufficient explanation” during sentencing hearings: “Overall, a sentencing court
should set forth enough to satisfy the appellate court that [it] has considered the parties’
arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.”
United States v. Duane, 533 F.3d 441, 451 (6th Cir. 2008) (first alteration in original) (citing
Rita, 551 U.S. at 356). However, the Supreme Court emphasized that the “appropriateness of
brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.
Sometimes a judicial opinion responds to every argument; sometimes it does not . . . . The law
leaves much, in this respect, to the judge's own professional judgment.” Rita, 551 U.S. at 357
(emphasis added).
A
Barbour first asserts that the district court committed plain error by failing to explicitly
address his sentencing memorandum arguments.

We have expressed a preference that the

district court provide its assessment of a defendant’s arguments for a lesser sentence, and noted
that “[w]hen the defendant or prosecutor presents nonfrivolous reasons for imposing a different
sentence . . . a sentencing judge should address the parties’ arguments and explain why he has
rejected those arguments.” United States v. Peters, 512 F.3d 787, 789 (6th Cir. 2008) (emphasis
added); see also Rita, 551 U.S. at 357 (“Where the defendant or prosecutor presents nonfrivolous
3

The analytical framework for determining plain error requires the defendant to “establish that (1) an error occurred,
(2) that the error was plain, (3) that the error affected substantial rights, and (4) that the error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.” United States v. Blackie, 548 F.3d 395, 399 (6th Cir.
2008) (alteration in original) (internal quotation marks omitted) (quoting United States v. Olano, 507 U.S. 725, 734–
37 (1993)).

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reasons for imposing a different sentence, however, the judge will normally go further and
explain why he has rejected those arguments.”). We have also held that when it is unclear
whether the district court understood or considered a defendant’s nonfrivolous argument for a
lower sentence and merely noted the existence of the § 3553(a) factors, remand for resentencing
is appropriate. See United States v. Wallace, 597 F.3d 794, 802, 806 (6th Cir. 2010).
However, we do not require in all cases that a sentencing judge specifically address a
defendant’s arguments, recognizing a distinct “exception to the requirement of explicit
discussion . . . whe[re] the defendant presents issues that are conceptually straightforward.”
United States v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009). In these cases, “failure to address
[each] argument ‘head-on’ does not require us to vacate the sentence,” Taylor, 696 F.3d at 635,
because “we may assume, even absent express analysis by the judge, that the sentence reflects
consideration of the argument.” Simmons, 587 F.3d at 361; see also United States v. Vonner,
516 F.3d 382, 388 (6th Cir. 2008) (holding that a sentencing judge evidenced his consideration
of an argument for a lesser sentence simply by “declining to give [the defendant] a lower
sentence”). Ultimately, with respect to within-Guidelines sentences like Barbour’s, our analysis
is simply whether the “‘record makes clear that the sentencing judge listened to each argument,’
‘considered the supporting evidence,’ was ‘fully aware of the defendant’s circumstances’ and
‘took them into account’ in sentencing him.” Vonner, 516 F.3d at 388.
During sentencing, Barbour offered three straight-forward arguments. Nothing in the
record indicates that the district court “misconstrued, ignored, or forgot” Barbour’s arguments
during his resentencing. See Thomas, 498 F.3d at 341. And, unlike in Thomas, the record
supports that the district court understood and considered Barbour’s arguments. For example,
the district court evidenced that it considered and understood Barbour’s arguments by asking the

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Government whether it had “any information as to how [Barbour] has adjusted while in prison”
immediately after Barbour and the Government had presented their sentencing arguments. R. 48,
Resentencing Tr. at 9, Page ID 222. What is implicit is undeniable—by re-imposing a top-ofthe-Guidelines sentence after listening to Barbour’s arguments, the district court indicated that it
still had the same concerns about Barbour’s proclivity toward gun violence that it articulated in
Barbour’s initial sentencing hearing only fourteen months prior.
While we need not consider whether Barbour’s arguments are frivolous, “which is to say
[that they] . . . cannot conceivably persuade the court,” McCoy v. Court of Appeals of Wisconsin,
Dist. 1, 486 U.S. 429, 451 (1988), his arguments were understandably unpersuasive to the district
court and, under the circumstances, “we may assume, even absent express analysis by the judge,
that the sentence reflects consideration of the argument.” Simmons, 587 F.3d at 361. First, the
district court certainly considered (and implicitly rejected) Barbour’s argument that his criminal
conduct “appeared more extensive” than it truly was because of the close time period between
his crimes. This close time period between two of Barbour’s aggravated robberies was the issue
before the district court in Barbour’s initial sentencing and formed the basis for this Circuit
overturning Barbour’s ACCA designation, vacating his sentence, and remanding the case back to
the district court for resentencing. See United States v. Barbour, 750 F.3d 535 (6th Cir. 2014).
Barbour’s remaining arguments regarding his relationship with his children, his progress toward
earning a General Education Development Diploma, and his work in the prison kitchen are
similarly straight forward.4 Nothing in the record or in the context of the resentencing suggests
that the district court failed to “listen,” to “consider,” or to “understand” Barbour’s arguments,

4

In fact, Barbour’s behavior while incarcerated is not uniquely rehabilitative. Terre Haute United States Prison,
Barbour’s place of incarceration both now and after his initial sentencing, indicates that “[a]ll inmates are expected
to maintain a regular job assignment.” See BUREAU OF PRISONS, FCC-TERRE HAUTE, INDIANA: A&O HANDBOOK
14, 2011, https://www.bop.gov/locations/institutions/tha/THX_aohandbook.pdf.

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Vonner, 516 F.3d at 388, and the district court’s affirmative inquiry regarding Barbour’s
adjustment indicates that it considered his arguments.
We openly acknowledge that, ideally, the district court would have said more and spent
time explaining its rejection of Barbour’s arguments for a lesser sentence.

However, our

precedent makes clear that, at least in this circumstance, failure to do so is not reversible plain
error. Finally, “it bears emphasizing that there is a sizeable gap between good sentencing
practices and reversibly bad sentencing practices. Vonner, 516 F.3d at 389; see also United
States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006) (“[W]e do not . . . require that [district courts]
exhaustively explain the obverse—why an alternative sentence was not selected—in every
instance.”). Because Barbour’s sentencing memorandum arguments were conceptually straightforward and the sentencing judge listened to and was actively familiar with each argument, the
district court did not commit plain error in implicitly rejecting Barbour’s arguments for a lesser
sentence.
B
Barbour next asserts that the sentencing court committed plain error in failing to consider
the § 3553(a) factors. Generally, “a sentence is procedurally inadequate only if the district judge
fails to consider the applicable Guidelines range or neglects to consider other factors listed in 18
U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence
without such required consideration.” Simmons, 587 F.3d at 358 (6th Cir. 2009) (internal
quotation marks omitted). While the district court is “not required to explicitly consider each of
the § 3553(a) factors or to engage in a ritualistic incantation . . . the record must demonstrate[]
that the sentencing court addressed the relevant factors in reaching its conclusion.” Duane,

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533 F.3d at 452 (citing United States v. Trejo–Martinez, 481 F.3d 409, 413 (6th Cir. 2007))
(internal quotations omitted).
The district court failed to mention § 3553(a) or any of its relevant factors during
Barbour’s resentencing. However, the district court incorporated its explanation from Barbour’s
first sentencing hearing into his resentencing hearing. This issue of incorporation by reference
was specifically addressed in U.S. v. Mendez, where we stated that “we may look to the more
thorough explanation furnished at the original sentencing hearing.” 498 F.3d 423, 428 (6th Cir.
2007). During that defendant’s resentencing, the district court did not “explicitly enumerate any
of the factors, [but] it obviously considered the appropriate Guidelines range, 18 U.S.C.
§ 3553(a)(4), and [stated] that it would be [t]aking into account the nature and circumstances of
the offense and [Mendez's] history.” Id. (third and fourth alterations in original) (internal
quotation marks omitted). We accordingly looked to the district court’s initial sentencing in
conjunction with its resentencing hearing to determine that the sentence was not procedurally
unreasonable. Id. at 428.
Like Mendez, the district court did not explicitly enumerate the § 3553(a) factors during
Barbour’s resentencing. However, at Barbour’s initial sentencing, the district court addressed
multiple § 3553(a) factors including:

the history and characteristics of the defendant, the

seriousness of the offense, the need to afford adequate deterrence, and the need to protect the
public from further crimes of defendant. Then, in reimposing a top-of-the-Guidelines sentence,
the district court “suggested it attempted to make the punishment fit the crime.” Mendez,
498 F.3d at 428. In Barbour’s resentencing, the district court clearly stated that “the reasons [the
Court] gave for the previous judgment are, obviously, the reasons that the Court gives for this
sentence” and again imposed a top-of-the-Guidelines sentence. R. 48, Resentencing Tr. at 11,

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Page ID 224. Like Mendez, when we “[c]onsider[] these proceedings together, the district court's
explanation of its sentencing decision surely allow[s] for reasonable appellate review,” Mendez,
498 F.3d at 428, and we conclude the combined proceedings provide a sufficient sentencing
explanation.
In conclusion, the district court was not required to explicitly reject Barbour’s sentencing
memorandum arguments given their conceptually straight-forward nature. See Duane, 533 F.3d
at 452. Further, the more thorough explanation furnished at Barbour’s initial sentencing hearing
serves to adequately explain why the district court re-imposed a top-of-the-Guidelines sentence
during Barbour’s resentencing. Even though we recognize that more comprehensive sentencing
explanations benefit appellate review, we do not believe this case, reviewed under our deferential
standard of plain error, is one of the “exceptional circumstances” where “the error is so plain that
the trial judge . . . [was] derelict in countenancing it.” Vonner, 516 F.3d at 385.
III
Barbour also argues that his sentence is substantively unreasonable because of the district
court’s “potential consideration” of his acquitted conduct. Appellant Br. at 4, 24–26. He styles
this “potential consideration” as an impermissible factor in his sentencing determination.
See United States v. Cochrane, 702 F.3d 334, 345 (6th Cir. 2012). Because Barbour was
sentenced within the Guidelines range, a rebuttable presumption of reasonableness attaches to his
sentence. Duane, 533 F.3d at 453.
At his resentencing hearing, Barbour’s attorney notified the district court that Barbour’s
indictment under 18 U.S.C. § 922(g)(1) (felon in possession of ammunition) arose from a state
law prosecution where Barbour was ultimately acquitted of the attempted murder of Michael
Kilgore. The government referenced the state law case during sentencing, noting that Barbour’s

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self-defense involved discharging a firearm.5 Barbour asserts that the government’s reference
insinuated that he should have been found guilty of attempted murder. He further argues that the
district court may have been persuaded by this insinuation, and it may have influenced the district
court’s 87-month top-of-the-Guidelines sentence.
A district court may consider a defendant’s acquitted conduct during sentencing, so long
as such conduct is supported by a preponderance of the evidence. United States v. White,
551 F.3d 381, 383 (6th Cir. 2008) (en banc). But see White, 551 F.3d at 386 (Merritt, J.,
dissenting). However, we need not reach the issue of whether Barbour’s acquitted conduct was
supported by a preponderance of the evidence because Barbour’s assertion that the district court
may have considered his acquitted conduct is wholly unsupported by the record. Nothing in the
district court’s initial sentencing or resentencing indicates that it based any part of its sentencing
decision on a perception that Barbour actually attempted to murder Kilgore. Yes, the district
court did reference the shooting of Michael Kilgore during the initial sentencing, but never
suggested that it viewed the shooting as anything other than self-defense. Nor did the court
indicate that the acquitted conduct played any role during sentencing. Instead, the district court
simply considered that Barbour’s conviction for unlawful possession of ammunition—the reason
Barbour was in front of the court in the first place—arose as a result of Barbour discharging a
firearm in shooting Kilgore.

To argue that the district court must divorce the context of

Barbour’s conviction for unlawful possession of ammunition from Barbour’s actual use of the
firearm (whether or not in self-defense) is contrary to 18 U.S.C. § 3553(a)(1)’s requirement that
the court “shall consider . . . the nature and circumstances of the offense[.]”

5

“So, the jury did rule it was self-defense, but Mr. Barbour had been out to the club with these people. He had been
carrying this gun the whole time before he ended up shooting these people.” R. 48, Resentencing Tr. at 8–9, Page
ID 221–22. See supra, Section I at 4.

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Barbour would have this Court read the district court’s silence regarding his acquitted
conduct to be a tacit acceptance that he attempted to murder Kilgore, arguing that “nothing in the
resentencing transcript indicates that the district court excluded Mr. Barbour’s acquitted conduct
with selecting his sentence[.]” Appellant Reply Br. at 16 (emphasis added). The district court is
not required to reject every insinuating statement made by the government, nor should it be
forced to expound an explicit list of the things it did not consider in sentencing. See Gale,
468 F.3d at 940 (explaining that a district court need not “exhaustively explain” why an alternate
sentence was not selected). Finally, Barbour points to no statement indicating that the district
court was suspicious of the jury’s acquittal. Barbour was indeed acquitted of attempted murder.
He was not, however, acquitted of using a gun when he shot Kilgore. Because the district court
did not improperly consider his acquitted conduct, we find no error and Barbour’s claim of
substantive unreasonableness fails.
IV
Barbour has not shown that the district court committed plain procedural error or
imposed a substantively unreasonable sentence. Thus, we AFFIRM the sentence imposed by the
district court.

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