                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 15-1317
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   PARRISH BARNES,
                                                    Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-95-cr-00349-001)
                         District Judge: Hon. Harvey Bartle, III
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 5, 2015

            Before: FUENTES, JORDAN, and VANASKIE, Circuit Judges.

                                (Filed: December 9, 2015)
                                    _______________

                                       OPINION
                                    _______________

JORDAN, Circuit Judge.




       This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Parrish Barnes appeals an order of the United States District Court for the Eastern

District of Pennsylvania revoking his supervised release for committing an assault. We

will affirm.

I.     Background

       In 1996, Barnes was convicted of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) and sentenced to 235 months’ incarceration followed

by a five-year period of supervised release. He began his period of supervised release in

2013. The following year, he was involved in an altercation with Ms. Aisha Vance, his

then-partner and the mother of his young son. After an argument, Vance dropped Barnes

off at his grandmother’s house and returned to her home. Shortly thereafter, Barnes

appeared at Vance’s house and began pounding on the door, demanding to be let in. He

somehow gained entry and went to Vance’s bedroom. What happened next is disputed.

According to the police report, Barnes proceeded to “punch [Vance] with a closed first,”

resulting in a large gash to her face that required hospitalization and stitches. (App. at

14.) Vance stabbed Barnes with scissors during the altercation.

       The morning after the incident, Vance told Barnes’s parole officer that Barnes had

struck her and that she had “fought back using scissors,” out of “fear for her children …

.” (App. at 37.) In a later interview with defense and prosecution counsel, she stated that

she did not know who had struck first, and she described the fight as one where they

“went at each other.” (App. at 30.)

       Barnes was arrested and charged with aggravated assault, burglary, criminal

trespass, simple assault, and reckless endangerment in Philadelphia Municipal Court.

                                              2
Com. of Pa. v. Parish Barnes, Docket No. MC-51-CR-0033930-2014. The state charges

were dropped when Vance, the complaining witness, refused to appear. But the steps to

revoke Barnes’s supervised release proceeded, having been initiated on the day of the

fight, when the government filed a notice of violation of supervised release. That notice

detailed the incident and categorized it as a Grade “A” violation of Barnes’s terms of

supervised release. (App. at 13-15.)

       At a hearing on the matter, Barnes was presented with a copy of the notice of

violation, which included both factual assertions about the incident, as well as an

assessment by the probation officer of the grading of the violation. Barnes confirmed

that he had seen the document, discussed the charged violation with counsel, and was

aware of the proscription against committing any further state or federal crime. He also

admitted that he had struck Vance, causing her injuries. During the colloquy that

followed, the prosecuting attorney, defense attorney, and the judge spoke at length about

the altercation. The Court was concerned with determining “exactly what happened … in

the bedroom,” noting that it was “pretty critical” to the case. (App. at 29.) In response,

defense counsel proffered, and Vance – who was in attendance – confirmed, that her

description of the incident was that they “went at each other.” (App. at 30.) Vance did

not offer any additional testimony as to the nature of the altercation and was “reluctant …

to testify.” (App. at 29.) The Court then sought testimony from the probation officer,

Officer Bergmann, concerning interviews he had conducted of Vance and Barnes shortly

after the incident. He testified that, during his initial interview of Vance, she had told

him that “Barnes during the argument had struck her” and that she had “fought back

                                              3
using scissors.” (App. at 37.) During Bergmann’s interview with Barnes, Bergmann saw

the stab wounds, which, according to Barnes, were received “during” the altercation.

(App. at 35.)

       The Court and counsel then had a detailed discussion of the sentencing criteria and

how those criteria should be applied. During that conversation, the prosecutor asserted

that Barnes’s crime must be either an aggravated assault or a simple assault, and that it

was also “definitely a crime of violence.” (App. at 43.) Applying the United States

Sentencing Guidelines to the facts demonstrated, the prosecutor said, that Barnes’s

actions constituted a “Grade A violation.” (App. at 44.) That, combined with Barnes’s

criminal history and the underlying crime, yielded a guidelines range of 51 to 63 months,

capped at 60 months because the sentence could not exceed the full length of Barnes’s

supervised release. Defense counsel made no objection to any aspect of that calculation

or the assessment of Barnes’s crime. Despite the uncontested guidelines range, the

prosecutor and defense counsel advocated a sentence of 12 months’ incarceration.

       In announcing its sentencing decision, the Court was explicit about its reasoning.

As to the conduct underlying the charge, it stated that Barnes “did assault Vance.” (App.

at 60.) More specifically, it concluded that Barnes’s offense was a “simple assault” under

18 Pa. C.S. § 2701. While acknowledging that Vance “may have assaulted [Barnes] with

scissors,” the Court found that Barnes was the aggressor and noted that Barnes “admitted

to violation of Pennsylvania law by committing the assault.” (Id.) As to the sentence, the

Court acknowledged the lengthy imprisonment authorized under the guidelines. The

Court considered other factors at greater length, however, including the seriousness of

                                             4
domestic violence, Barnes’s history of violence, particularly against women, and the need

to protect society from Barnes and his conduct. Considering all of those factors “under

the totality of the circumstances,” the Court sentenced Barnes to 24 months’

imprisonment, followed by three years of supervised release. (App. at 61-62.) This

timely appeal followed.

II.    Discussion1

       On appeal Barnes claims that the District Court erred in categorizing his offense as

a “Grade A” violation of the terms of his supervised release and, consequently, calculated

an incorrect range under the guidelines and imposed an unduly harsh sentence. Because

Barnes did not raise that issue during the revocation proceedings, we review for plain

error.2 United States v. Olano, 507 U.S. 725, 732 (1993). To demonstrate “plain error,”



       1
         The District Court had jurisdiction over Barnes’s original criminal trial under 18
U.S.C. § 3231, and jurisdiction to determine whether to revoke Barnes’s supervised
release pursuant to 18 U.S.C. § 3583(e). We have jurisdiction to review the District
Court’s final decision pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       2
         The government argues in its brief that Barnes actually waived any ability to
challenge the sentence during the revocation proceedings. In order to find a waiver, there
must be “intentional relinquishment or abandonment of a known right.” United States ex
rel. O’Connor v. State of New Jersey, 405 F.2d 632, 634 n.2 (3d Cir. 1969) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The government asserts that Barnes’s
counsel agreed to the violation and grading specified in the petition and, consequently,
Barnes cannot now object to that grade simply because he did not receive the extent of
downward variance he had hoped for. Had Barnes’s counsel agreed that Barnes’s
conduct constituted a “Grade A” violation of his supervised release, that argument might
have been waived. But the record contains no such agreement. Barnes did acknowledge
that he had seen the petition to revoke his supervised release, that he had discussed the
violation with his lawyer, and that he understood the terms of his supervised release. He
also agreed that he struck Vance on the date in question. But that is the extent of
Barnes’s substantive testimony. At no point did he or his counsel explicitly concur with
                                             5
a defendant must prove that the Court erred, that the error was “clear” or “obvious,” and

that the error “affect[ed] substantial rights” of the defendant. Olano, 507 U.S. at 733-35;

Fed. R. Crim. P. 52(b). The defendant bears the burden to prove each of those points.

Olano, 507 U.S. at 734. Even if the defendant succeeds in that proof, reversal for plain

error is “permissive, not mandatory” and should only be granted when there is an error

that “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. at 735-36 (citations omitted).

       In this case, Barnes asserts that the District Court committed plain error by

classifying his offense as a simple assault in violation of 18 Pa. C.S. § 2701(a), a second-

degree misdemeanor. 18 Pa. C.S. § 2701(b). He claims that the altercation was “a fight

or scuffle entered into by mutual consent” in violation of 18 Pa. C.S. § 2701(b)(1), which

constitutes a third-degree misdemeanor. That distinction is of consequence, as it would

lower Barnes’s violation level to Grade “C” and consequently lower his guidelines range

to 8 to 14 months.3 Barnes contends that Pennsylvania defines a fight “entered into by

mutual consent” broadly, and, based on Vance’s position that the two parties “went at

each other,” he claims there can be no other proper conclusion than that the offense was a

“mutual consent” assault rather than a simple assault. We disagree.




the contents of the petition, nor make any other concessions. Consequently, there was no
waiver.
       3
        Second-degree misdemeanors are punishable by up to two years’ imprisonment,
whereas third-degree misdemeanors are punishable by imprisonment of no more than a
year. 18 Pa. C.S. § 1104.
                                               6
       Under Pennsylvania law, a person is guilty of simple assault when he

“intentionally … causes bodily injury to another.” 18 Pa. C.S. § 2701(a)(1). That statute

also provides, as a mitigation for sentencing purposes, that an assault may be only a third-

degree misdemeanor when it is committed “in a fight or scuffle entered into by mutual

consent … .” 18 Pa. C.S. § 2701(b)(1). Pennsylvania’s model jury instructions provide

that a fight by “mutual consent” occurs when “the parties engage[] in the fighting

mutually, both desiring to do so.” Pa. SSJI (Crim), §15.2701F (2014). Importantly,

whether “mutual consent existed” is “a question of fact for the fact finder.”

Commonwealth v. Mathis, 464 A.2d 362, 366 (Pa. Super. Ct. 1983).

       At bottom, Barnes’s argument is predicated on a disagreement with the District

Court’s findings of fact, to which we must defer absent clear error. United States v.

Blackston, 940 F.2d 877, 885 (3d Cir. 1991). Clear error is a high standard, and generally

cannot be met when a fact-finder has chosen between “two permissible views of the

evidence.” United States v. Pelullo, 173 F.3d 131, 135 (3d Cir. 1999). In her statement

to Officer Bergmann on the day of the incident, Ms. Vance stated that Barnes struck her

and that she fought back using scissors. The Court credited that statement. Moreover,

the record suggests that Barnes initiated the altercation by appearing uninvited in Vance’s

bedroom in the middle of the night and aggressively resuming an earlier argument. That

evidence is sufficient to make it a “permissible view” that Barnes was “clearly … the

aggressor,” as the Court found. (App. at 60.) The District Court’s factual findings were

not clearly erroneous, and thus there was ample support for its determination that Barnes

had committed simple assault. That, in turn, supports the Court’s assessment of Barnes’s

                                             7
conduct as a Grade “A” offense and the ultimate guidelines calculation. In short, there

was no error in the District Court’s ruling, let alone plain error.

III.   Conclusion

       For the forgoing reasons, we will affirm.




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