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United States v. Barthman

United States District Court, D. Minnesota

August 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN ARTHUR BARTHMAN, Defendant.

          Erica H. MacDonald, United States Attorney, and Miranda E. Dugi, Assistant United States Attorney, for plaintiff.

          Brian Arthur Barthman, pro se defendant.

          ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW PLEA OF GUILTY

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant Brian Arthur Barthman pled guilty to Possession of Child Pornography Involving a Prepubescent Minor pursuant to 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). The Court sentenced him to 151 months in prison. Barthman appealed to the Eighth Circuit, who vacated the sentence and remanded to this Court for resentencing due to improper calculations regarding Barthman's criminal history score. Barthman now moves to withdraw his plea of guilty. Because he cannot demonstrate a fair and just reason for doing so, and because additional factors weigh against withdrawal of his plea, the Court will deny his motion.

         BACKGROUND

         I. FACTUAL HISTORY

         The factual history of this case was discussed extensively in a Report and Recommendation by U.S. Magistrate Judge Leo I. Brisbois, which the Court adopted. United States v. Barthman, No. 16-CR-284 (JRT/LIB), 2017 WL 8947192 (D. Minn. Jan. 17, 2017), R&R adopted, No. CR 16-284 (JRT/LIB), 2017 WL 1012963 (D. Minn. Mar. 15, 2017). A brief summary follows:

         In December 2015, a twelve-year-old girl, C.B., reported to her school counselor that she and her sister were not being well cared for at home. Barthman, 2017 WL 8947192, at *1. Conversations with a social worker led to C.B. disclosing sexual abuse by her father, Barthman. Id. at *2. In addition to numerous allegations of physical and sexual abuse, C.B. reported that Barthman had shown her inappropriate photos, had asked her if she wanted to watch naughty videos, and had “bad videos” on his phone and the television. Id. During a forensic interview C.B.'s six-year-old sister, A.B., stated that one of the rules in their house was not to touch Barthman's computer. Id. at *3. She also disclosed that she had been shown nude pictures or videos and that her family had taken photos or videos of her without her clothes on. Id.

         Pursuant to a warrant, the application for which was based in part on these statements, police seized various electronics belonging to Barthman and conducted a forensic search of them. See Id. *3-*5. The search revealed numerous child pornography images and videos. (See Plea Ag. ¶¶ 2(b)-(c), June 27, 2017, Docket No. 62.)

         II. PROCEDURAL HISTORY

         On October 18, 2016, Barthman was indicted for Possession of Child Pornography Involving a Prepubescent Minor pursuant to 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). (Indictment, Oct. 18, 2016, Docket No. 1.) On June 27, 2017, he entered a guilty plea. (See Plea Ag.; Plea Tr., Mar. 9, 2018, Docket No. 100.) On January 12, 2018, the Court sentenced Barthman to 151 months' imprisonment and a lifetime term of supervised release. (See Sentencing J. at 2-3, Jan. 19, 2018, Docket No. 85.) Barthman had already been sentenced to 60 years' imprisonment in state court on the underlying sex offense. (Sentencing Tr. at 33, 38, Mar. 9, 2018, Docket No. 98.) The Court imposed the federal sentence to run concurrent to the longer state sentence. (Id. at 42; Sentencing J. at 2.)

         Barthman appealed, and the Eighth Circuit vacated his sentence on the grounds that the Court miscalculated Barthman's criminal history score. United States v. Barthman, 919 F.3d 1118, 1120 (8th Cir. 2019). The Eighth Circuit remanded to this Court for resentencing. Id.

         On May 17, 2019, Barthman filed a pro se motion to withdraw his plea of guilty. (Def.'s Mot. to Withdraw Guilty Plea (“Mot.”), May 17, 2019, Docket No. 119.)

         DISCUSSION

         I. JURISDICTION

         As a preliminary matter, the Court must consider whether it has jurisdiction to consider Barthman's Motion.

         Before sentencing, a defendant can withdraw his or her guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). However, “[a]fter the court imposes sentence, the defendant may not withdraw a plea of guilty . . ., and the plea may be set aside only on direct appeal or collateral attack.” Fed. R. Crim. P. 11(e).

         The United States argues that Barthman has already been sentenced and that the Court's jurisdiction in this matter is limited only to resentencing. Barthman argues that, because his sentence was vacated, he stands before the Court as though he has never been sentenced.

         The Eighth Circuit does not appear to have considered this precise issue, but several other circuits agree with Barthman.[1] Consistent with this persuasive precedent, and having found no precedent to the contrary, the Court finds that it has jurisdiction to consider Barthman's Motion.

         II. STANDARD OF REVIEW

         Barthman's motion must be viewed in the context of “the particular importance of the finality of guilty pleas.” United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). “[D]ispositions by guilty plea are accorded a great measure of finality, ” and “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 71, 74 (1977). Likewise, guilty pleas are solemn acts “not to be disregarded because of belated misgivings about [their] wisdom.” United States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992) (quotation omitted).

         Barthman must demonstrate “a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “While the standard is liberal, the defendant has no automatic right to withdraw a plea.” United States v. Heid, 651 F.3d 850, 853 (8th Cir. 2011) (quotation omitted). “[T]he decision to allow or deny the motion remains within the ...


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