               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0721n.06

                                       Case No. 14-6217

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


                                                                        FILED
UNITED STATES OF AMERICA,                            )               Oct 28, 2015
                                                     )          DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                           )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE EASTERN
JOHNNY L. BARBOUR,                                   )        DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )

                                                                                OPINION


BEFORE: M ERRITT, McKEAGUE, and WHITE, Circuit Judges.

       McKEAGUE, Circuit Judge.             Johnny Barbour was sentenced to 87 months’

imprisonment for unlawfully possessing ammunition after his initial 188 month sentence was

vacated. During resentencing, the district court provided a limited explanation for Barbour’s

sentence, but referenced and incorporated its more thorough explanation from Barbour’s initial

sentencing. It also implicitly considered and rejected Barbour’s arguments for a lower sentence

within the Guidelines. Barbour challenges procedural and substantive aspects of his sentence.

Both his procedural unreasonableness and substantive unreasonableness claims fail.

Accordingly, we affirm the sentence imposed by the district court.
Case No. 14-6217
U.S. v. Johnny Barbour

                                                           I

         On October 13, 2010, defendant Johnny Barbour shot Michael Kilgore after an

altercation between the two occurred while Kilgore was giving Barbour a ride in his car after the

two met at a bar in Chattanooga, Tennessee. At trial in Tennessee state court, Barbour testified

that Kilgore attacked him and that he shot Kilgore in self-defense. A jury acquitted Barbour of

several state charges, including attempted murder. The gun Barbour used in the altercation was

never recovered, but a spent .380 caliber shell from Barbour’s weapon was found at the scene of

the shooting. Barbour subsequently pleaded guilty to violating 18 U.S.C. §922(g)(1)—felon in

possession of ammunition.

         Barbour had a prior drug conviction and three prior aggravated robbery convictions.

R. 10-1, Presentence Invest. Report at 6–7, ¶¶ 26–27, 31, Page ID 6–7. Because of these

convictions, Barbour was initially deemed an armed career criminal under 18 U.S.C. § 924(e),

the Armed Career Criminal Act (“ACCA”). Id. He faced a statutory mandatory minimum

sentence of fifteen years’ imprisonment with an advisory Guidelines range of 180 to 188 months’

imprisonment. Id.

         Barbour objected to his designation as an armed career criminal, arguing that his two

prior aggravated robberies should be counted as a single predicate offense because they were part

of one criminal spree.1 R. 24, Initial Sentencing Memo. at 2–3, Page ID 45–46. The district

court disagreed and applied the armed-career-criminal designation. Barbour was then sentenced

to 188 months’ imprisonment, the top of the Guidelines range. The district court explained that

Barbour had “built up quite a history of violent activities” and the maximum recommended



1
 Barbour and three accomplices planned to rob a convenience store. On their way inside, they robbed a person who
was sitting in his vehicle in front of the store. Barbour and his accomplices then robbed the clerk inside the store at
gunpoint. R. 43, Second Revised PSR at 6, Page ID 146.

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U.S. v. Johnny Barbour

sentence was necessary “to protect the public from future crimes of the defendant” because he

had “been involved in a number of incidents involving firearms and shootings.” Id. at 95, 98.

        Barbour appealed his armed-career-criminal designation in 2013, maintaining his position

that his prior aggravated robberies should be a single predicate offense. We agreed that Barbour

was “not subject to the [armed-career-criminal] enhancements of 18 U.S.C. § 924(e)(1),” and

remanded to the district court for resentencing. United States v. Barbour, 750 F.3d 535, 546 (6th

Cir. 2014). On remand, the probation officer recalculated Barbour’s Guidelines range without

the ACCA enhancement to be 70–87 months.

        During resentencing, Barbour argued that a sentence on the lower end of his revised 70–

87 month Guideline range was appropriate. In support of this argument, Barbour emphasized

three points: (1) his criminal activity appeared more extensive than it truly was because of the

close time period between his crimes and that all of his criminal history occurred on just three

separate days;2 (2) he continued to maintain frequent contact with his children; and (3) his

progress toward earning a General Education Development Diploma and work in the prison

kitchen indicated that he was assuming responsibility for his actions. R. 39, Sentencing Memo.

at 1–3, Page ID 126–28.

        The government argued for a sentence of 87 months, addressing the deterrent value of a

longer sentence and the need to protect the public. R. 48, Resentencing Tr. at 8–9, Page ID 221–

22.    The government emphasized the violent nature of Barbour’s three prior aggravated

robberies, noting that his current offense—felon in possession of ammunition—was the result of


2
 On February 11, 2003, Barbour was arrested for possession and exchange of a controlled substance and possession
of a dangerous weapon. On November 21, 2003, Barbour committed three aggravated robberies by robbing a clerk
and a customer at one convenience store and a clerk at another (see supra, Section I at 2 n.1). On October 10, 2010,
Barbour engaged in the self-defense shooting of Michael Kilgore which led to his instant conviction for felon in
possession of ammunition. R. 39, Page ID 126–27.


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U.S. v. Johnny Barbour

illegally possessing and discharging a firearm only eight months after being released from

prison. Id. at 221. To reiterate Barbour’s involvement with firearms, the government referenced

the shooting of Michael Kilgore: “So, the jury did rule it was self-defense, but Mr. Barbour had

been out to the club with these people. He had been carrying this gun the whole time before he

ended up shooting these people . . . .” Id. at 221–22. Directly after Barbour and the government

presented their sentencing arguments, the sentencing judge referenced Barbour’s plea for a

lower-end Guidelines sentence by asking the government whether it “[had] any information as to

how [Barbour] has adjusted while in prison[.]” R. 48, Resentencing Tr. at 9, Page ID 222. The

government responded that it did not. Id. at 222–23.

       The district court provided a very brief explanation during Barbour’s resentencing and

did not mention 18 U.S.C. § 3553(a) or any of its factors:

       This matter is back before the Court as a result of action by the Circuit Court. The
       Court in viewing the evidence before it deemed a sentence of 188 months
       appropriate under the guidelines. The Court does not have that option anymore.
       The only way that the Court could reach that sentence [would be] to impose a
       non-guideline sentence in this case based upon the facts and, although, that might
       be something the Court could do, the Court is not going to do that, rather, the
       Court will stay within the guidelines here. And the Court will impose a sentence
       at the 87 month point.
R. 48, Resentencing Tr. at 10, Page ID 223. The district court, however, resentencing Barbour

only fourteen months after his initial sentence, incorporated its rationale from Barbour’s first

sentencing hearing by noting that “the reasons that the Court gave for the previous judgment are,

obviously, the reasons that the Court gives for this sentence.” Id. at 224. In Barbour’s initial

sentencing hearing, the district court provided a thorough explanation for sentencing Barbour to

the then top-of-the-Guidelines range of 188 months:

       The Court having considered arguments of counsel, the statement of the
       defendant, the nature and circumstances of the offense, the history and
       background of the defendant, the advisory guideline range we have here, as well

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U.S. v. Johnny Barbour

       as the Section 3553(a) factors, it is the judgment of the Court that the defendant
       be committed to the custody of the Bureau of Prisons to be imprisoned for a term
       of 188 months . . . The Court has decided to impose the sentence that it did to
       protect the public from future crimes of the defendant. As the Court alluded to
       earlier, Mr. Barbour has been involved in a number of incidents involving
       firearms and shootings. He was shot once in 2002, according to the presentence
       report. And according to the presentence report, also, he was involved in a
       shootout with police officers after a robbery. And [his counsel] alluded to another
       shooting where he was acquitted in state court. That’s an awful lot of shootings
       for a very young man who is only 31 years old. Such a sentence also reflects the
       seriousness of the offense and affords adequate deterrence to this type of criminal
       activity.
R. 31, Initial Sent. Tr. at 18–20, Page ID 96–98 (emphasis added).

       After imposing Barbour’s sentence of 87 months during the resentencing, the sentencing

judge asked whether the parties had “any objections to the sentence that the Court just imposed

that have not previously been raised?” R. 48, Resentencing Tr. at 12, Page ID 225. Neither

Barbour’s counsel nor the government raised any objections. Id.

       Barbour contends that his resentencing was procedurally unreasonable because the

district court did not mention any § 3553(a) factors and failed to explicitly reject his arguments

for a lesser sentence. He further argues that, even if the district court’s explanation from the first

sentencing hearing is incorporated by reference into his resentencing hearing, the explanation

does not adequately assess his arguments for a lesser sentence because the arguments were made

only after his initial sentencing. Barbour finally contends that his sentence is substantively

unreasonable because the district court may have based the sentence on his acquitted conduct in

the shooting of Michael Kilgore.

                                                 II

       Barbour failed to raise his procedural challenges when given the opportunity to object at

sentencing. Therefore, we review his claims of procedural unreasonableness only for plain error.




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U.S. v. Johnny Barbour

United States v. Lumbard, 706 F.3d 716, 720 (6th Cir. 2013).3 Barbour’s claim regarding the

potential consideration of his acquitted conduct is a substantive unreasonableness challenge and

we review for abuse of discretion. Id. at 721.

         In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court addressed the outer

contours of a “sufficient explanation” during sentencing hearings: “Overall, a sentencing court

should set forth enough to satisfy the appellate court that [it] has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.”

United States v. Duane, 533 F.3d 441, 451 (6th Cir. 2008) (first alteration in original) (citing

Rita, 551 U.S. at 356). However, the Supreme Court emphasized that the “appropriateness of

brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.

Sometimes a judicial opinion responds to every argument; sometimes it does not . . . . The law

leaves much, in this respect, to the judge's own professional judgment.” Rita, 551 U.S. at 357

(emphasis added).

                                                             A

         Barbour first asserts that the district court committed plain error by failing to explicitly

address his sentencing memorandum arguments.                        We have expressed a preference that the

district court provide its assessment of a defendant’s arguments for a lesser sentence, and noted

that “[w]hen the defendant or prosecutor presents nonfrivolous reasons for imposing a different

sentence . . . a sentencing judge should address the parties’ arguments and explain why he has

rejected those arguments.” United States v. Peters, 512 F.3d 787, 789 (6th Cir. 2008) (emphasis

added); see also Rita, 551 U.S. at 357 (“Where the defendant or prosecutor presents nonfrivolous

3
  The analytical framework for determining plain error requires the defendant to “establish that (1) an error occurred,
(2) that the error was plain, (3) that the error affected substantial rights, and (4) that the error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings.” United States v. Blackie, 548 F.3d 395, 399 (6th Cir.
2008) (alteration in original) (internal quotation marks omitted) (quoting United States v. Olano, 507 U.S. 725, 734–
37 (1993)).

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U.S. v. Johnny Barbour

reasons for imposing a different sentence, however, the judge will normally go further and

explain why he has rejected those arguments.”). We have also held that when it is unclear

whether the district court understood or considered a defendant’s nonfrivolous argument for a

lower sentence and merely noted the existence of the § 3553(a) factors, remand for resentencing

is appropriate. See United States v. Wallace, 597 F.3d 794, 802, 806 (6th Cir. 2010).

       However, we do not require in all cases that a sentencing judge specifically address a

defendant’s arguments, recognizing a distinct “exception to the requirement of explicit

discussion . . . whe[re] the defendant presents issues that are conceptually straightforward.”

United States v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009). In these cases, “failure to address

[each] argument ‘head-on’ does not require us to vacate the sentence,” Taylor, 696 F.3d at 635,

because “we may assume, even absent express analysis by the judge, that the sentence reflects

consideration of the argument.” Simmons, 587 F.3d at 361; see also United States v. Vonner,

516 F.3d 382, 388 (6th Cir. 2008) (holding that a sentencing judge evidenced his consideration

of an argument for a lesser sentence simply by “declining to give [the defendant] a lower

sentence”). Ultimately, with respect to within-Guidelines sentences like Barbour’s, our analysis

is simply whether the “‘record makes clear that the sentencing judge listened to each argument,’

‘considered the supporting evidence,’ was ‘fully aware of the defendant’s circumstances’ and

‘took them into account’ in sentencing him.” Vonner, 516 F.3d at 388.

       During sentencing, Barbour offered three straight-forward arguments. Nothing in the

record indicates that the district court “misconstrued, ignored, or forgot” Barbour’s arguments

during his resentencing. See Thomas, 498 F.3d at 341. And, unlike in Thomas, the record

supports that the district court understood and considered Barbour’s arguments. For example,

the district court evidenced that it considered and understood Barbour’s arguments by asking the


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U.S. v. Johnny Barbour

Government whether it had “any information as to how [Barbour] has adjusted while in prison”

immediately after Barbour and the Government had presented their sentencing arguments. R. 48,

Resentencing Tr. at 9, Page ID 222. What is implicit is undeniable—by re-imposing a top-of-

the-Guidelines sentence after listening to Barbour’s arguments, the district court indicated that it

still had the same concerns about Barbour’s proclivity toward gun violence that it articulated in

Barbour’s initial sentencing hearing only fourteen months prior.

         While we need not consider whether Barbour’s arguments are frivolous, “which is to say

[that they] . . . cannot conceivably persuade the court,” McCoy v. Court of Appeals of Wisconsin,

Dist. 1, 486 U.S. 429, 451 (1988), his arguments were understandably unpersuasive to the district

court and, under the circumstances, “we may assume, even absent express analysis by the judge,

that the sentence reflects consideration of the argument.” Simmons, 587 F.3d at 361. First, the

district court certainly considered (and implicitly rejected) Barbour’s argument that his criminal

conduct “appeared more extensive” than it truly was because of the close time period between

his crimes. This close time period between two of Barbour’s aggravated robberies was the issue

before the district court in Barbour’s initial sentencing and formed the basis for this Circuit

overturning Barbour’s ACCA designation, vacating his sentence, and remanding the case back to

the district court for resentencing. See United States v. Barbour, 750 F.3d 535 (6th Cir. 2014).

Barbour’s remaining arguments regarding his relationship with his children, his progress toward

earning a General Education Development Diploma, and his work in the prison kitchen are

similarly straight forward.4 Nothing in the record or in the context of the resentencing suggests

that the district court failed to “listen,” to “consider,” or to “understand” Barbour’s arguments,


4
  In fact, Barbour’s behavior while incarcerated is not uniquely rehabilitative. Terre Haute United States Prison,
Barbour’s place of incarceration both now and after his initial sentencing, indicates that “[a]ll inmates are expected
to maintain a regular job assignment.” See BUREAU OF PRISONS, FCC-TERRE HAUTE, INDIANA: A&O HANDBOOK
14, 2011, https://www.bop.gov/locations/institutions/tha/THX_aohandbook.pdf.

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Vonner, 516 F.3d at 388, and the district court’s affirmative inquiry regarding Barbour’s

adjustment indicates that it considered his arguments.

       We openly acknowledge that, ideally, the district court would have said more and spent

time explaining its rejection of Barbour’s arguments for a lesser sentence.          However, our

precedent makes clear that, at least in this circumstance, failure to do so is not reversible plain

error. Finally, “it bears emphasizing that there is a sizeable gap between good sentencing

practices and reversibly bad sentencing practices. Vonner, 516 F.3d at 389; see also United

States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006) (“[W]e do not . . . require that [district courts]

exhaustively explain the obverse—why an alternative sentence was not selected—in every

instance.”). Because Barbour’s sentencing memorandum arguments were conceptually straight-

forward and the sentencing judge listened to and was actively familiar with each argument, the

district court did not commit plain error in implicitly rejecting Barbour’s arguments for a lesser

sentence.

                                                 B

       Barbour next asserts that the sentencing court committed plain error in failing to consider

the § 3553(a) factors. Generally, “a sentence is procedurally inadequate only if the district judge

fails to consider the applicable Guidelines range or neglects to consider other factors listed in 18

U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence

without such required consideration.” Simmons, 587 F.3d at 358 (6th Cir. 2009) (internal

quotation marks omitted). While the district court is “not required to explicitly consider each of

the § 3553(a) factors or to engage in a ritualistic incantation . . . the record must demonstrate[]

that the sentencing court addressed the relevant factors in reaching its conclusion.” Duane,




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U.S. v. Johnny Barbour

533 F.3d at 452 (citing United States v. Trejo–Martinez, 481 F.3d 409, 413 (6th Cir. 2007))

(internal quotations omitted).

       The district court failed to mention § 3553(a) or any of its relevant factors during

Barbour’s resentencing. However, the district court incorporated its explanation from Barbour’s

first sentencing hearing into his resentencing hearing. This issue of incorporation by reference

was specifically addressed in U.S. v. Mendez, where we stated that “we may look to the more

thorough explanation furnished at the original sentencing hearing.” 498 F.3d 423, 428 (6th Cir.

2007). During that defendant’s resentencing, the district court did not “explicitly enumerate any

of the factors, [but] it obviously considered the appropriate Guidelines range, 18 U.S.C.

§ 3553(a)(4), and [stated] that it would be [t]aking into account the nature and circumstances of

the offense and [Mendez's] history.” Id. (third and fourth alterations in original) (internal

quotation marks omitted). We accordingly looked to the district court’s initial sentencing in

conjunction with its resentencing hearing to determine that the sentence was not procedurally

unreasonable. Id. at 428.

       Like Mendez, the district court did not explicitly enumerate the § 3553(a) factors during

Barbour’s resentencing. However, at Barbour’s initial sentencing, the district court addressed

multiple § 3553(a) factors including:     the history and characteristics of the defendant, the

seriousness of the offense, the need to afford adequate deterrence, and the need to protect the

public from further crimes of defendant. Then, in reimposing a top-of-the-Guidelines sentence,

the district court “suggested it attempted to make the punishment fit the crime.” Mendez,

498 F.3d at 428. In Barbour’s resentencing, the district court clearly stated that “the reasons [the

Court] gave for the previous judgment are, obviously, the reasons that the Court gives for this

sentence” and again imposed a top-of-the-Guidelines sentence. R. 48, Resentencing Tr. at 11,


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U.S. v. Johnny Barbour

Page ID 224. Like Mendez, when we “[c]onsider[] these proceedings together, the district court's

explanation of its sentencing decision surely allow[s] for reasonable appellate review,” Mendez,

498 F.3d at 428, and we conclude the combined proceedings provide a sufficient sentencing

explanation.

        In conclusion, the district court was not required to explicitly reject Barbour’s sentencing

memorandum arguments given their conceptually straight-forward nature. See Duane, 533 F.3d

at 452. Further, the more thorough explanation furnished at Barbour’s initial sentencing hearing

serves to adequately explain why the district court re-imposed a top-of-the-Guidelines sentence

during Barbour’s resentencing. Even though we recognize that more comprehensive sentencing

explanations benefit appellate review, we do not believe this case, reviewed under our deferential

standard of plain error, is one of the “exceptional circumstances” where “the error is so plain that

the trial judge . . . [was] derelict in countenancing it.” Vonner, 516 F.3d at 385.

                                                 III

       Barbour also argues that his sentence is substantively unreasonable because of the district

court’s “potential consideration” of his acquitted conduct. Appellant Br. at 4, 24–26. He styles

this “potential consideration” as an impermissible factor in his sentencing determination.

See United States v. Cochrane, 702 F.3d 334, 345 (6th Cir. 2012). Because Barbour was

sentenced within the Guidelines range, a rebuttable presumption of reasonableness attaches to his

sentence. Duane, 533 F.3d at 453.

       At his resentencing hearing, Barbour’s attorney notified the district court that Barbour’s

indictment under 18 U.S.C. § 922(g)(1) (felon in possession of ammunition) arose from a state

law prosecution where Barbour was ultimately acquitted of the attempted murder of Michael

Kilgore. The government referenced the state law case during sentencing, noting that Barbour’s


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U.S. v. Johnny Barbour

self-defense involved discharging a firearm.5 Barbour asserts that the government’s reference

insinuated that he should have been found guilty of attempted murder. He further argues that the

district court may have been persuaded by this insinuation, and it may have influenced the district

court’s 87-month top-of-the-Guidelines sentence.

        A district court may consider a defendant’s acquitted conduct during sentencing, so long

as such conduct is supported by a preponderance of the evidence. United States v. White,

551 F.3d 381, 383 (6th Cir. 2008) (en banc). But see White, 551 F.3d at 386 (Merritt, J.,

dissenting). However, we need not reach the issue of whether Barbour’s acquitted conduct was

supported by a preponderance of the evidence because Barbour’s assertion that the district court

may have considered his acquitted conduct is wholly unsupported by the record. Nothing in the

district court’s initial sentencing or resentencing indicates that it based any part of its sentencing

decision on a perception that Barbour actually attempted to murder Kilgore. Yes, the district

court did reference the shooting of Michael Kilgore during the initial sentencing, but never

suggested that it viewed the shooting as anything other than self-defense. Nor did the court

indicate that the acquitted conduct played any role during sentencing. Instead, the district court

simply considered that Barbour’s conviction for unlawful possession of ammunition—the reason

Barbour was in front of the court in the first place—arose as a result of Barbour discharging a

firearm in shooting Kilgore.          To argue that the district court must divorce the context of

Barbour’s conviction for unlawful possession of ammunition from Barbour’s actual use of the

firearm (whether or not in self-defense) is contrary to 18 U.S.C. § 3553(a)(1)’s requirement that

the court “shall consider . . . the nature and circumstances of the offense[.]”



5
 “So, the jury did rule it was self-defense, but Mr. Barbour had been out to the club with these people. He had been
carrying this gun the whole time before he ended up shooting these people.” R. 48, Resentencing Tr. at 8–9, Page
ID 221–22. See supra, Section I at 4.

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        Barbour would have this Court read the district court’s silence regarding his acquitted

conduct to be a tacit acceptance that he attempted to murder Kilgore, arguing that “nothing in the

resentencing transcript indicates that the district court excluded Mr. Barbour’s acquitted conduct

with selecting his sentence[.]” Appellant Reply Br. at 16 (emphasis added). The district court is

not required to reject every insinuating statement made by the government, nor should it be

forced to expound an explicit list of the things it did not consider in sentencing. See Gale,

468 F.3d at 940 (explaining that a district court need not “exhaustively explain” why an alternate

sentence was not selected). Finally, Barbour points to no statement indicating that the district

court was suspicious of the jury’s acquittal. Barbour was indeed acquitted of attempted murder.

He was not, however, acquitted of using a gun when he shot Kilgore. Because the district court

did not improperly consider his acquitted conduct, we find no error and Barbour’s claim of

substantive unreasonableness fails.

                                               IV

        Barbour has not shown that the district court committed plain procedural error or

imposed a substantively unreasonable sentence. Thus, we AFFIRM the sentence imposed by the

district court.




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