                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0117p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


 UNITED STATES OF AMERICA,                             ┐
                                 Plaintiff-Appellee,   │
                                                       │
                                                       │
        v.                                              >      No. 15-5237
                                                       │
                                                       │
 LESTER ALLEN BARNES,                                  │
                              Defendant-Appellant.     │
                                                       ┘
                        Appeal from the United States District Court
                     for the Eastern District of Tennessee at Knoxville.
               No. 3:13-cr-00117-1—Thomas A. Varlan, Chief District Judge.

                                  Argued: March 10, 2016

                             Decided and Filed: May 16, 2016

                    Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Amy Lee Copeland, ROUSE + COPELAND LLC, Savannah, Georgia, for
Appellant. Cynthia F. Davidson, UNITED STATES ATTORNEY’S OFFICE, Knoxville,
Tennessee, for Appellee. ON BRIEF: Amy Lee Copeland, ROUSE + COPELAND LLC,
Savannah, Georgia, for Appellant. Cynthia F. Davidson, UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

       JANE B. STRANCH, Circuit Judge. A jury convicted Lester Barnes of drug trafficking
and firearms offenses including, among other things, possession with intent to distribute
oxycodone in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and possession of a firearm in



                                              1
No. 15-5237                         United States v. Barnes                            Page 2


furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Barnes argues on
appeal that insufficient evidence supports his § 924(c) conviction, that the district court wrongly
admitted certain evidence with respect to his possession with intent to distribute conviction, and
that the district court improperly considered a 1998 drug conviction when determining Barnes’s
guidelines sentencing range. For the reasons that follow, we AFFIRM.

                                      I. BACKGROUND

       On March 22, 2013, federal law enforcement agents looking for illegal prescription drugs
executed a search warrant on a trailer home, which belonged to Barnes, in rural East Tennessee.
The agents were acting on information from Jessica Holt, a confidential informant (CI) who had
purchased oxycodone from Barnes during three recent controlled buys in coordination with law
enforcement. The agents found roughly 300 pills in the trailer, mostly in prescription bottles
bearing Barnes’s name, and some in bottles prescribed to other individuals. They also found at
least $1700 in cash—including marked bills from the CI’s controlled buys—as well as
ammunition and several firearms. Two guns were tucked under the corners of a waterbed
mattress in the living room where Barnes slept and where he was seated when agents arrived to
execute the search warrant.

       A federal grand jury indicted Barnes on August 20, 2013, charging him with the
following: three counts of distribution of oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) based on the three times Barnes sold pills to the CI (Counts 1, 2, and 3); one count of
possession with intent to distribute oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) based on the pills recovered from Barnes’s trailer (Count 4); one count of possession of
a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) based on
the two guns found under Barnes’s mattress (Count 5); and one count of unlawful possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1) based on the total of seven guns
recovered from Barnes’s property (Count 6). On September 6, a magistrate judge ordered that
Barnes be temporarily detained pending his arraignment and detention hearing. While Barnes
was being held in a local jail, he placed three recorded telephone calls—two on September 8 to a
woman named Susan, and one on September 10 to his daughter Danielle. During the calls,
Barnes appeared to discuss pill distribution, the handling of drug proceeds, and certain firearms.
No. 15-5237                          United States v. Barnes                             Page 3


The government indicated that it intended to introduce the recorded jail calls at trial, but Barnes
moved to exclude the calls from evidence, and the district court granted in part and denied in part
his motion. Specifically, the court ruled that the government could introduce only the portions of
the recordings in which Barnes appeared to make statements about pill distribution for the
purpose of showing Barnes’s intent to distribute the oxycodone found in his trailer. The court
explained that it would give the jury a limiting instruction to mitigate any risk of unfair prejudice
to Barnes. The district court further determined that the remaining portions of the recordings
were unfairly prejudicial to Barnes and therefore inadmissible under Federal Rule of Evidence
403.

          Trial commenced on October 28, 2014. Barnes twice moved for a judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29(a)—first at the close of the government’s
case and again at the close of all evidence—arguing that there was insufficient evidence to
sustain a conviction against him on any of the charges. The court denied Barnes’s motion both
times and submitted the case to the jury on October 29. The jury convicted Barnes of all six
counts.

          Neither Barnes nor the government filed objections to the presentence investigation
report (PSR), which relied on Barnes’s 1998 state conviction for a controlled substance offense
in its calculation of Barnes’s offense level and criminal history category under the United States
Sentencing Guidelines (USSG). The PSR calculated Barnes’s base offense level as 20 under
USSG §2K2.1(a)(4)(A), his adjusted offense level as 22 under USSG §2K2.1(b)(1)(A), and
assigned Barnes to criminal history category II. The PSR stated that the resulting guidelines
range was 46–57 months of imprisonment and explained that because Count 5—the § 924(c)
charge—carried a mandatory minimum of 5 years (60 months) that had to be imposed
consecutively to any other prison term, Barnes’s effective guidelines range was 106–117 months.
The district court sentenced Barnes to 106 months of imprisonment. Barnes timely appealed.

                                         II. ANALYSIS

          Barnes advances three arguments on appeal, two of which concern the evidence against
him and one that relates to his guidelines range. First, Barnes appeals his § 924(c) conviction,
No. 15-5237                          United States v. Barnes                             Page 4


arguing that there was insufficient evidence to show that he possessed a gun in furtherance of a
drug trafficking crime. Second, Barnes argues that the district court abused its discretion by
admitting any portion of the recorded jail calls. Third, Barnes contends that it was plain error for
the court to consider his 1998 drug conviction at sentencing because that conviction was too old
to be included in his guidelines calculation for the instant offenses. We address each of Barnes’s
arguments in turn.

          A. The § 924(c) Conviction

          Section 924(c) imposes criminal penalties on “any person who, during and in relation to
any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm[.]” 18 U.S.C. § 924(c). This language
criminalizes two distinct offenses: (1) using or carrying a gun during and in relation to a violent
or drug trafficking crime; and (2) possessing a gun in furtherance of such a crime. See United
States v. Combs, 369 F.3d 925, 930–32 (6th Cir. 2004). Barnes was charged with the latter
offense—possessing a firearm in furtherance of a drug trafficking crime, here possession with
intent to distribute oxycodone. He now challenges the sufficiency of the evidence underlying the
jury’s finding that he possessed the two guns under his waterbed mattress in furtherance of that
crime. Barnes concedes that he possessed the guns, at least constructively, for purposes of the
§ 924(c) conviction. He argues, however, that because his poor physical health would have
prohibited him from lifting the mattress, there was insufficient evidence for a jury to find that the
guns were strategically positioned so as to be quickly and easily available and, thus, insufficient
evidence to find that Barnes possessed the guns in furtherance of a drug trafficking crime. The
government responds that because “the firearms were under the corners of the waterbed mattress,
not underneath the mattress as a whole” and because of “the proximity of the firearms to
[Barnes] and his drugs, a rational jury could easily conclude that the defendant possessed those
firearms to advance, promote, or facilitate the charged drug-trafficking crime.” (Appellee’s Br.
at 12.)

          In reviewing insufficient evidence claims on appeal from a jury verdict we “view[] the
facts in the light most favorable to the prosecution” and affirm the conviction if “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
No. 15-5237                        United States v. Barnes                            Page 5


United States v. Sykes, 292 F.3d 495, 498–99 (6th Cir. 2002); see also United States v. Abboud,
438 F.3d 554, 589 (6th Cir. 2006) (“When reviewing the sufficiency of evidence in support of a
jury verdict, this Court views the evidence in the light most favorable to the prosecution and
gives the prosecution the benefit of all reasonable inferences from the testimony.”).        This
standard creates “a very heavy burden” for defendants who, like Barnes, seek relief from a jury
conviction on evidence sufficiency grounds. Abboud, 438 F.3d at 589 (citations omitted).

       Our circuit recognizes that “[b]y requiring that the possession be ‘in furtherance of’ the
crime, Congress intended a specific nexus between the gun and the crime charged.” United
States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). “In other words, the weapon must promote
or facilitate the crime.” Id. at 461. The mere “possession of a firearm on the same premises as a
drug transaction [does] not, without a showing of a connection between the two, sustain a
§ 924(c) conviction.” Id. at 462. Rather, “the firearm must be strategically located so that it is
quickly and easily available for use.” Id.; see also Combs, 369 F.3d at 933 (concluding that “‘in
furtherance of’ . . . requires the government to prove . . . that the firearm’s presence in the
vicinity of the crime was something more than mere chance or coincidence”). “Other factors that
may be relevant to a determination of whether” or not the in-furtherance-of requirement has been
met include: (1) “whether the gun was loaded,” (2) “the type of weapon,” (3) “the legality of its
possession,” (4) “the type of drug activity conducted,” and (5) “the time and circumstances under
which the firearm was found.” Mackey, 265 F.3d at 462.

       The two guns underlying Barnes’s § 924(c) conviction are a revolver and a semi-
automatic pistol. The revolver was loaded and tucked under the top left corner of Barnes’s
waterbed mattress near the headboard; the semi-automatic pistol was unloaded, but stored with a
loaded magazine, and was located under the bottom left corner of the waterbed mattress near the
foot of the bed. It is undisputed that because Barnes had a prior felony conviction it was illegal
for him to possess these or any other guns under 18 U.S.C. § 922(g)(1). When the agents arrived
to search his trailer, Barnes was sitting on top of his waterbed. In his pockets the agents found
cash—including marked bills from the controlled buy—and a bottle of pills prescribed to
someone else. Next to him on the waterbed there was a purple Crown Royal bag containing
additional bottles of prescription pills. Agents found even more pills in a safe next to the bed.
No. 15-5237                          United States v. Barnes                             Page 6


The first agent who entered the trailer testified that he saw Barnes “reach into the side of the
bed” as though reaching for a firearm (R. 64, PageID 843), and so the agent “jumped up on top
of the bed and” tackled Barnes to the ground, yelling for Barnes to put his hands up (id. at
PageID 844).

       Barnes argues that “with his physical limitations and need for a tank of oxygen beside his
bed, [he] lacked the agility, quickness, and stamina to get off the bed, lift up a waterbed mattress,
and retrieve any handgun[,]” much less retrieve and load one.             (Appellant’s Br. at 20.)
Construing the evidence in the light most favorable to the prosecution, however, a reasonable
jury could conclude that Barnes had the ability to slip his hand under a corner of the waterbed
mattress and remove either the loaded revolver or the pistol and magazine. See Sykes, 292 F.3d
at 498–99. The fact that Barnes possessed both handguns illegally and that they were found in
close proximity to the pills and cash in his trailer further suggests that “a reasonable jury could
infer that the purpose of the firearm[s] was to provide defense or deterrence in furtherance of the
drug trafficking [offense] for which [Barnes] was arrested.” Mackey, 265 F.3d at 462–63. We
therefore affirm Barnes’s § 924(c) conviction.

       B. The Jail Call Recordings

       Barnes also argues on appeal that the district court should have excluded the recorded jail
calls in their entirety and that the admitted portions of the calls pertaining to pill distribution
were improperly used to attack Barnes’s character. The government maintains that admission
was proper under Federal Rule of Evidence 404(b) and, alternatively, argues that any error in
admission was harmless because the record contains overwhelming evidence of Barnes’s intent
to distribute oxycodone with respect to Count 4.

       Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). Such “evidence may be admissible for
another purpose,” however, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Trial
courts employ a three-part test to determine the admissibility of 404(b)(2) evidence. See United
No. 15-5237                          United States v. Barnes                              Page 7


States v. Mack, 729 F.3d 594, 601 (6th Cir. 2013). First, a court determines whether there is
sufficient evidence that the crime, wrong, or other act took place. See id. Second, it decides
whether evidence of that conduct is offered for a proper purpose, i.e., “whether the evidence is
probative of a material issue other than character.” Id. Third, the court considers whether any
risk of unfair prejudice substantially outweighs the evidence’s probative value. See id. We
employ a corresponding tripartite standard when reviewing a district court’s decision to admit
evidence under Rule 404(b). See id. (collecting cases); see also United States v. Bell, 516 F.3d
432, 440 (6th Cir. 2008). We review for clear error the district court’s factual determination that
the other act occurred; we examine de novo the court’s legal determination that evidence of the
other act is admissible for a proper purpose; and we review for abuse of discretion the court’s
determination that the probative value of the evidence is not substantially outweighed by a risk
of unfair prejudice. See Mack, 729 F.3d at 601.

        During Barnes’s trial, the district court allowed the jury to hear audio excerpts from two
of Barnes’s recorded jail calls. The excerpts pertained only to alleged conversations about pill
distribution.   Specifically, the jury heard Barnes talking to a woman named Susan about
“medicine” and making statements such as “Jerrica . . . needs two white ones for every day.
That’s all you got to give out. Okay?” (R. 39-2, PageID 157, 158; see also R. 39-1, PageID
153.) Barnes also mentions on the calls that he is “worried about” a woman named “Fran” who
“needs two yellows [and] four green ones[.]” (R. 39-2, PageID 158.) “[G]et Fran’s bottle,” he
tells Susan, “two yellow pills and four little green ones. She’s got to have em.” (Id. at PageID
159.)

                1. Sufficient Evidence

        Prior to admitting the recordings, the district court found that “sufficient evidence exists
that the acts in question took place.” (R. 40, PageID 181.) The court explained that Barnes’s jail
“conversations were recorded, and there is no dispute that he is the one who was recorded.” Id.
Barnes argues on appeal, however, that because he “dispute[s] that the recording demonstrated
evidence of any crime” this panel should hold that the district court clearly erred with respect to
the first prong of the 404(b) admission analysis. (Appellant’s Br. at 25; see also id. at 27 (“[I]t is
not clear what Barnes means in these phone conversations or that a crime actually occurred.”).)
No. 15-5237                          United States v. Barnes                              Page 8


This argument misconstrues the requirements of Rule 404(b). The rule states that “[e]vidence of
a crime, wrong, or other act” may be admissible if certain conditions are met. Fed. R. Evid.
404(b)(1) (emphasis added). There is no requirement that the actions at issue be criminal. And
there is no dispute in the instant case that Barnes placed the calls in question or that he is the one
speaking on the recordings. Consequently, it cannot be said that the district court clearly erred
when it found sufficient evidence that Barnes placed the recorded calls and made the statements
captured on the recordings. See Bell, 516 F.3d at 441.

               2. Proper Purpose

       With respect to the second prong of the 404(b) analysis, the district court held that
Barnes’s statements on the excerpted portions of the audio recordings were “admissible for a
proper purpose under Rule 404(b) because they are probative of [Barnes’s] intent to distribute
the drugs he is alleged to have possessed on March 22, 2013.” (R. 40, PageID 181.) Our
precedent holds that proffered Rule 404(b) evidence “is probative of a material issue other than
character if (1) the evidence is offered for an admissible purpose, (2) the purpose for which the
evidence is offered is material or ‘in issue,’ and (3) the evidence is probative with regard to the
purpose for which it is offered.” Bell, 516 F.3d at 441–42 (quoting United States v. Rayborn,
495 F.3d 328, 342 (6th Cir. 2008)). Because we review the district court’s legal determination of
this issue de novo, we address each of these factors in turn.

       “Section 841(a)(1) provides that it is unlawful for any person knowingly or intentionally
to . . . ‘possess with intent to manufacture, distribute, or dispense, a controlled substance.’”
Mackey, 265 F.3d at 460 (quoting 21 U.S.C. § 841(a)(1)). Establishing a violation of this section
requires the government to prove intent to distribute, among other things. See id. (quoting
United States v. Christian, 786 F.2d 203, 210 (6th Cir. 1986)). Rule 404(b)(2) expressly lists
proving “intent” as a permissible purpose for other acts evidence, and this court has previously
“approved of the admission of other acts evidence to show specific intent in certain
circumstances.” United States v. Clay, 667 F.3d 689, 695 (6th Cir. 2012). Indeed, we “[m]ost
frequently . . . admit this evidence in cases involving drug offenses such as possession with
intent to distribute or conspiracy to distribute[.]” Id. (collecting cases). The excerpted jail calls
in this case were therefore offered for an admissible purpose. See Bell, 516 F.3d at 441–42.
No. 15-5237                          United States v. Barnes                             Page 9


          As for whether Barnes’s intent was “material or ‘in issue,’” id., the government argues
that Barnes made intent an issue with respect to Count 4 by denying selling pills and claiming
that the pills in his possession on March 22 were either for his own use with valid prescriptions
or belonged to friends for whom he was “holding” them. Barnes does not dispute that intent is
material to Count 4, and intent is an express element of the crime charged. The central dispute
on appeal with respect to admissibility is whether or not the jail calls, which were recorded in
September, are probative of Barnes’s intent to distribute oxycodone six months earlier in March.
The parties agree that evidence of both prior and subsequent acts may be admissible under Rule
404(b). Barnes, however, notes this court’s opinion in United States v. Cowart, 90 F.3d 154
(6th Cir. 1996), where we relied on “waiver and harmless error” principles to decide the 404(b)
evidentiary issues in the case but “nonetheless observe[d] that rarely will an event that occurred
subsequent to the charged crime be probative of motive, knowledge, or intent[.]” Cowart,
90 F.3d at 158. But our dicta in Cowart does not dictate the outcome of the instant case. “To
determine if evidence of other acts is probative of intent, we look to whether the evidence relates
to conduct that is substantially similar and reasonably near in time to the specific intent offense
at issue.” Bell, 516 F.3d at 443 (quoting United States v. Haywood, 280 F.3d 715, 721 (6th Cir.
2002)).

          The specific intent offense at issue here is possession of oxycodone with intent to
distribute. Roughly six months after his initial arrest, Barnes was being held in a local jail on
that charge and other charges on which he was eventually tried when he placed recorded phone
calls instructing a woman named Susan to distribute certain colored pills to other individuals. In
cases involving evidence of prior drug distribution, we have cautioned that “the fact that a
defendant has intended to possess and distribute drugs in the past does not logically compel the
conclusion that he presently intends to possess and distribute drugs[,]” holding instead that Rule
404(b) prohibits a court from employing reasoning that amounts to “once a drug dealer, always a
drug dealer[.]” Bell, 516 F.3d at 443–44. That concern, while valid, is not present in the instant
case. The government sought to introduce evidence that after Barnes was arrested for possession
with intent to distribute, and while he was being detained for that offense, he was still instructing
others to distribute controlled substances on his behalf.
No. 15-5237                         United States v. Barnes                             Page 10


       The admitted jail call statements are, moreover, substantially similar to Count 4’s charge
of possession with intent to distribute. See, e.g., United States v. Benton, 852 F.2d 1456, 1468
(6th Cir. 1988) (“[W]here evidence of [other] bad acts is admitted for the purpose of showing
intent, the prior acts need not duplicate exactly the instant charge, but need only be sufficiently
analogous to support an inference of criminal intent.”). Indeed, Barnes’s statements on the calls
may well be “part of the same scheme of drug distribution” and/or evince “the same modus
operandi” as the charged crime. Bell, 516 F.3d at 443. As for whether the calls took place
“reasonably near in time” to the charged conduct, id., Barnes argues that six months is simply
too long a period of time for the calls to be probative of his prior intent. Perhaps Barnes might
have a point if the jail calls were unrelated to the charged conduct, but Barnes made the calls
while being detained on those very charges in what appears to be a continuation of his
distribution activity. The jail call statements were thus probative of intent, which is a material
issue other than character, satisfying the second prong of the 404(b) admission analysis.

               3. Risk of Unfair Prejudice

       With respect to the third and final prong of the 404(b) analysis, the district court ruled
that Barnes’s “statements regarding the apparent distribution of pills [were] not substantially
more prejudicial than probative.” (R. 40, PageID 182.) Specifically, the court reasoned that the
statements were probative insofar as they could “make it more likely that [Barnes] had the
requisite intent to distribute oxycodone on the date of the charged offense” and that the risk of
unfair prejudice was low because “[t]he statements are [Barnes’s] own, and there is nothing in
the recordings that suggests the jury would be tempted to give the statements undue or improper
weight.” (Id. at PageID 183.) The court therefore concluded, based on its review of the
recordings, that it could “sufficiently mitigate any danger of unfair prejudice by issuing a
limiting instruction.” (Id.)

       As explained, we review this aspect of the district court’s decision for an abuse of
discretion. See Mack, 729 F.3d at 601. “Under this standard, we will leave rulings about
admissibility of evidence undisturbed unless we are left with the definite and firm conviction that
the [district] court . . . committed a clear error of judgment in the conclusion it reached.” United
States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005) (alterations in original) (quoting United States
No. 15-5237                         United States v. Barnes                             Page 11


v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004)). It is well established in this circuit that “[a]n
abuse of discretion occurs when a district court relies on clearly erroneous findings of fact,
improperly applies the law or uses an erroneous legal standard.” Id. (citing Romstadt v. Allstate
Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995)). We have also held that because district courts have
“[b]road discretion” to make “determinations of admissibility based on considerations of
relevance and prejudice,” we may not “lightly overrule[]” their decisions. Id.; see also United
States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004) (“A district court is granted ‘very broad’
discretion in determining whether the danger of undue prejudice outweighs the probative value
of the evidence.” (quoting United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989))).

        Barnes essentially argues that because, in his estimation, the jail calls were not probative
of his intent to distribute oxycodone, the risk of unfair prejudice necessarily outweighed any
probative value. Barnes also argues that the district court’s limiting instruction was insufficient
to mitigate the risk of unfair prejudice because the prosecution ignored the instruction during
closing arguments and suggested to the jury that the jail calls were evidence that Barnes was
guilty of all six counts.

        Neither of these arguments gives rise to the requisite “definite and firm conviction” that
the district court “relie[d] on clearly erroneous findings of fact, improperly applie[d] the law or
use[d] an erroneous legal standard” when it admitted the jail call statements about pill
distribution with a limiting instruction.    Dixon, 413 F.3d at 544.      Under our Rule 404(b)
precedent, and as explained above, the jail calls are indeed probative of Barnes’s intent in the
context of the charged crime. See Bell, 516 F.3d at 443. And the court’s limiting instruction—
cautioning jurors that they could consider the jail call “evidence only as it relates to the
government’s claim [about Barnes’s] intent to distribute oxycodone on or about March 22, 2013”
and “must not consider it for any other purpose” (R. 65, PageID 915)—sufficiently mitigated the
risk that jurors would consider the jail call evidence for improper purposes. This is especially so
since the court repeated the limiting instruction after closing arguments and expressly told jurors
that “[t]he lawyers’ statements and arguments are not evidence.” (Id. at PageID 1020.) As a
result, Barnes has not shown that the district court abused its discretion in admitting the pill
No. 15-5237                           United States v. Barnes                               Page 12


distribution portions of the recorded jail calls. We therefore do not address the government’s
alternative argument of harmless error.

       C. Sentencing Guidelines Calculation

       Lastly, Barnes challenges the PSR’s sentencing guidelines calculation, which the district
court adopted at sentencing. He argues that his 1998 state drug conviction was too old to be
included in the calculation because his two-year sentence for that conviction was automatically
suspended pursuant to state law after just seven months.

       Because Barnes challenges his sentencing guidelines calculation for the first time on
appeal, we review the district court’s application of the guidelines for plain error. See United
States v. McBride, 362 F.3d 360, 373 (6th Cir. 2004) (“[A]bsent plain error, this Court will not
address claims of alleged misapplication of the [sentencing] guidelines unless the defendant first
raised the claim before the district court.” (alterations in original) (quoting United States v.
Thomas, 24 F.3d 829, 832 (6th Cir. 1994))). To prevail, Barnes must demonstrate: “(1) that an
error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the
error affected [his] substantial rights; and (4) that this adverse impact seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” United States v. Davis,
397 F.3d 340, 346 (6th Cir. 2005) (quoting United States v. Koeberlein, 161 F.3d 946, 949 (6th
Cir. 1998)).

       In 1998, Barnes pled guilty to a state charge of possession of a schedule VI drug with
intent to sell. Specifically, Barnes admitted to possession of 69.2 grams of marijuana along with
cellophane baggies and two sets of hand scales. The trial court sentenced Barnes to two years in
the custody of the Tennessee Department of Correction. Barnes began serving his sentence on
March 12, 2001, and was automatically “[r]eleased on Determinate Release” on October 8, 2001,
pursuant to Tennessee state law. (R. 49, PageID 629.) Barnes’s release was mandated by the
Criminal Sentencing Reform Act of 1989, as amended. See Tenn. Code Ann. § 40-35-501(a)(3)
(1998). Tennessee courts have held that “[t]he purpose of the Act was to address the problem of
prison overcrowding in Tennessee and at the same time promote justice and consistency in
criminal sentencing.” State v. Cummings, 868 S.W.2d 661, 665 (Tenn. Crim. App. 1992); see
No. 15-5237                        United States v. Barnes                            Page 13


also Tenn. Code Ann. §§ 40-35-102(5)–(6). To that end, and as relevant in Barnes’s case, the
Act provides:

       Notwithstanding any other provision of law, inmates with felony sentences of two
       (2) years or less shall have the remainder of their original sentence suspended
       upon reaching their release eligibility date. . . . The department [of correction]
       shall notify the district attorney general, and the appropriate sheriff, jail
       administrator, workhouse superintendent or warden of the release eligibility date
       of all felons with sentences of two (2) years or less in the institution.

Tenn. Code. Ann. § 40-35-501(a)(3).      “Suspension of sentence in this manner shall be to
probation supervision under terms and conditions established by the department.” Id. § 40-35-
501(a)(5).

       During the sentencing phase of the instant case, the PSR factored Barnes’s 1998
conviction into the guidelines calculation and the district court adopted that calculation at
Barnes’s sentencing hearing.      The PSR included the 1998 conviction based on USSG
§4A1.2(e)(1), which states that “[a]ny prior sentence of imprisonment exceeding one year and
one month that was imposed within fifteen years of the defendant’s commencement of the instant
offense is counted.” USSG §4A1.2(e)(1) (2014).

       Counting the 1998 conviction affected Barnes’s guidelines calculation in two ways.
First, it effectively raised his base offense level by 6 points pursuant to USSG §2K2.1(a)(4)(A),
which provides for a base offense level of 20 if “the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of . . . a controlled substance offense[.]”
USSG §2K2.1(a)(4). Barnes’s base offense level would otherwise have been 14 under USSG
§2K2.1(a)(6), though he still would have received the 2-point increase under USSG
§2K2.1(b)(1)(A) for firearms possession, bringing his total offense level without the 1998
conviction to 16. Second, the 1998 conviction garnered three criminal history points—the only
criminal history points scored against Barnes in the PSR—placing Barnes in criminal history
category II. Without counting the 1998 conviction, Barnes would have been in criminal history
category I. The resulting guidelines range for a total offense level of 16 and a criminal history
category of I would have been 21–27 months, and 81–87 months including the § 924(c)
No. 15-5237                        United States v. Barnes                            Page 14


mandatory minimum, as opposed to the 46–57 months and 106–117 months, respectively, that
the PSR calculated counting the 1998 conviction.

       Whether or not Barnes’s 1998 conviction should have been taken into account in the PSR
turns on the meaning of the word “suspended” in USSG §4A1.2(b)(2). Sections 4A1.2(b)(1) and
4A1.2(b)(2) define the term “sentence of imprisonment” as used in the Sentencing Guidelines.
According to §4A1.2(b)(1), “‘sentence of imprisonment’ means a sentence of incarceration and
refers to the maximum sentence imposed.” USSG §4A1.2(b)(1). Section 4A1.2(b)(2) provides,
however, that “[i]f part of a sentence of imprisonment was suspended, ‘sentence of
imprisonment’ refers only to the portion that was not suspended.” USSG §4A1.2(b)(2).

       Barnes argues that because his two-year sentence for the 1998 conviction was
automatically “suspended” under the Criminal Sentencing Reform Act, only the seven months he
actually spent in prison should count toward his sentence of imprisonment for guidelines
purposes. This would mean that the PSR should only have counted any “prior sentence that was
imposed within ten years of the defendant’s commencement of the instant offense” under USSG
§4A1.2(e)(2), placing the 1998 conviction too far in the past to count with respect to his 2013
offense.   Our precedent on this point holds, however, that “in using the term ‘suspended
sentence’ in the guidelines, Congress was referring to the authority of a court to suspend a
sentence, not a government agency.” United States v. Harris, 237 F.3d 585, 589 (6th Cir. 2001);
see also United States v. Richardson, 597 F. App’x 328, 341 (6th Cir. 2015); United States v.
Brothers, 209 F. App’x 460, 463 (6th Cir. 2006).

       For example, the defendant-appellant in United States v. Harris argued that because the
Tennessee Department of Correction administratively paroled him after serving just 18 days of
his 2 concurrent 3-year sentences, his sentences of imprisonment for guidelines purposes were
18 days, not 3 years. See 237 F.3d at 587. A panel of this court disagreed, holding that “Harris’s
sentences were not ‘suspended.’      Instead, he was simply paroled by the state to relieve
overcrowded prison conditions.” Id. at 589. The reasoning of our precedent applies here. The
sentencing court did not suspend Barnes’s term of imprisonment.          Instead, the Tennessee
Department of Correction automatically released Barnes on probation pursuant to the Criminal
Sentencing Reform Act—a law designed to reduce prison overcrowding—and Barnes appears to
No. 15-5237                         United States v. Barnes                               Page 15


have remained on probation until the expiration of his sentence on November 15, 2003. Barnes’s
briefing does not address Harris or any other precedent relevant to his guidelines challenge. His
reply brief likewise fails to address any of the government’s arguments against him on this issue.
(See Appellant’s Reply at 15 (“Barnes relies on the discussion at pages 31 through 40 of his
principal brief concerning the erroneous guidelines calculations made in this case.”).) Barnes
has not shown that the district court plainly erred in apply the Sentencing Guidelines.

                                        III. CONCLUSION

       For the foregoing reasons, we AFFIRM Barnes’s § 924(c) conviction, the district court’s
404(b) ruling, and Barnes’s sentence.
