                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2008

USA v. Barney
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1734




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Recommended Citation
"USA v. Barney" (2008). 2008 Decisions. Paper 1329.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1329


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                                                                  NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                   No. 07-1734
                                   __________

                         UNITED STATES OF AMERICA

                                         v.

                               CLIFTON BARNEY,
                                     a/k/a
                                   DOODLES

                                   Clifton Barney,
                                                     Appellant.
                                   __________

                  On Appeal from the United States District Court
                         for the District of New Jersey
                        (D.C. Criminal No.06-cr-00019)
                      District Judge: Joseph H. Rodriguez
                                  __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on March 28, 2008

           Before: McKEE, RENDELL, and TASHIMA,* Circuit Judges.

                              (Filed: April 25, 2008)




__________________

   * Honorable A. Wallace Tashima, Senior Judge of the United States Court of
     Appeals for the Ninth Circuit, sitting by designation.
                                          __________

                                 OPINION OF THE COURT
                                       __________




RENDELL, Circuit Judge.

       Appellant Clifton Barney raises two issues on appeal from his sentence of

150 months’ imprisonment for possession with intent to distribute more than 5 grams of

crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). First, he contends that

the District Court failed to rule on his request for a variance based upon the unwarranted

sentencing disparity between penalties for crack cocaine and powder cocaine offenses.

Second, he contends that the District Court’s imposition of a $2,000 fine, without

evaluating his ability to pay the fine, was error. We will affirm.

       At sentencing, Barney sought a variance based upon the significantly greater

sentences recommended in the Guidelines for offenses involving crack cocaine, as

compared to those for offenses involving powder cocaine. Barney contends that the

District Court did not make “a definitive ruling” on this request. (Appellant’s Br. 11.)

Barney notes, however, that the District Court specifically recognized that it was

appropriate for the Court to consider the disparity as a factor under 18 U.S.C. § 3553(a) in

deciding whether a sentence below the advisory Guidelines would be appropriate. Barney

faults the District Court, however, for failing to “fulfill its responsibility to exercise its



                                                2
discretion in determining whether a variance was appropriate in this particular case.”

(Appellant’s Br. 11.)

       Barney is apparently relying upon our case law in United States v. Gunter, 462

F.3d 237 (3d Cir. 2006), and United States v. Jackson, 467 F.3d 834 (3rd Cir. 2006).

However, in those cases, the relevant language is that the courts ought “to exercise their

discretion by considering the relevant § 3553(a) factors in setting the sentence they

impose regardless whether it varies from the sentence calculated under the Guidelines.”

Gunter, 462 U.S. at 247 (internal quotation marks, brackets, and citations omitted);

Jackson, 467 F.3d at 837 (quoting Gunter). We find no requirement in our case law for

the District Court to do more than it did here, where, as Barney acknowledges, it

considered the disparity as a factor in its analysis under § 3553(a). Accordingly, we find

no error in the District Court’s analysis or resulting sentence.1

       With respect to the proof required in order for the District Court to impose a fine,

Barney acknowledges that the burden of proving inability to pay the fine is on the

defendant. See U.S.S.G. § 5E1.2(a); see also United States v. Carr, 25 F.3d 1194, 1211

(3d Cir. 1994) (“Imposing a fine based solely on future ability to pay is permissible.”).


  1
    Our decision is rendered without prejudice to any right Barney may have to pursue a
reduced sentence in the District Court, pursuant to § 3582(c)(2), based upon the
Sentencing Commission’s authorization of sentence reductions for defendants whose
Guidelines ranges were lowered by the November 1, 2007 amendment to the crack
cocaine sentencing ranges. See U.S.S.G. § 2D1.1 (Nov. 1, 2007); U.S.S.G. § 1B1.10
(Mar. 3, 2008); 73 Fed. Reg. 217-01 (Jan. 2, 2008); United States v. Wise, 515 F.3d 207,
221 (3d Cir. 2008).

                                              3
We note that we review this ruling for plain error, as no objection was lodged before the

District Court. In imposing the $2,000 fine, the District Court ordered that any portion of

the fine that remained unpaid prior to the commencement of Barney’s 4-year term of

supervised release would be payable in monthly installments of $43.00 during supervised

release. (App. 6.)

       The Presentence Investigation Report (“PSR”) concluded that although Barney

could not pay a fine within the Guidelines range of $15,000 to $2,000,000, he could begin

paying a smaller fine through the Inmate Financial Responsibility Program if

incarcerated. (PSR ¶¶ 62, 73.) It is clear from the PSR that Barney was in good health,

had graduated from high school, had earned (then lost) a scholarship to play football at

Temple University, and had been employed in the past in a variety of capacities, earning

as much as $10 per hour and $100 per day. (PSR ¶¶ 53, 57-60.) In its Statement of

Reasons, the Court adopted the PSR “without change.” See United States v. Torres, 209

F.3d 308, 314 (3d Cir. 2000) (“[T]his Court's requirement of specific findings will be

satisfied if the District Court adopts a PSR which contains adequate factual findings with

reference to an ability to pay such that there can be effective appellate review.”)

       In light of Barney’s failure to argue or demonstrate that he was unable to pay a

relatively small ($2,000) fine, especially in monthly installments, the District Court’s

decision to impose the fine was not error, let alone plain error. See Torres, 209 F.3d at

313 (“[W]here . . . a defendant, whose burden it was to prove his or her inability to pay by



                                              4
a preponderance of the evidence, made utterly no showing in that regard and took no

issue with facts of record showing an ability to pay, error sufficient to warrant relief must

be very plain, indeed.”).

       In light of the foregoing, the Judgment and Commitment Order of the District

Court will be AFFIRMED.

__________________




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