United States District Court, D. Minnesota
H. MacDonald, United States Attorney, and Miranda E. Dugi,
Assistant United States Attorney, for plaintiff.
Arthur Barthman, pro se defendant.
ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW PLEA
R. TUNHEIM CHIEF JUDGE
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.
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
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.
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.)
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
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.
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.)
preliminary matter, the Court must consider whether it has
jurisdiction to consider Barthman's Motion.
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).
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.
Eighth Circuit does not appear to have considered this
precise issue, but several other circuits agree with
Barthman. Consistent with this persuasive precedent,
and having found no precedent to the contrary, the Court
finds that it has jurisdiction to consider Barthman's
STANDARD OF REVIEW
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).
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 ...