                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1279
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                               Brian Arthur Barthman

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                          Submitted: November 16, 2018
                              Filed: April 3, 2019
                                 ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

      Brian Barthman pled guilty to one count of possession of child pornography
involving a prepubescent minor, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2).
In the sentencing analysis, Barthman was assigned a total of six criminal-history
points due to prior convictions in Minnesota state court for first- and second-degree
criminal sexual conduct, which were treated as a single sentence for crimes of
violence under United States Sentencing Commission, Guidelines Manual, § 4A1.1,
comment. (n.5), and which yielded a criminal-history category of III.1 Barthman was
given a total offense level of 32. The district court found his Guidelines range was
151-188 months. Barthman was sentenced to 151 months imprisonment, to run
concurrently with a state-court sentence. The district court also imposed a lifetime
of supervised release.

       On appeal, Barthman challenges his sentence, arguing that the district court
committed procedural error because he should have received only three, not six,
criminal-history points, which would have yielded a criminal-history category of II,
not III, and would have placed him within a lower Guidelines range of 135-168
months. In other words, Barthman contends he was placed in the wrong criminal-
history category when he was given three additional criminal-history points for the
prior convictions. See Gall v. United States, 552 U.S. 38, 51 (2007) (noting that
appellate courts “must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range”). The government agrees Barthman’s criminal-history score was
miscalculated because the applicable Minnesota statutes of conviction,
Minn. Stat. §§ 609.342-.343, apply to victims under the age of 13, while the federal
comparator statute, 18 U.S.C. § 2241(c), in relevant part, applies to victims under the
age of 12. However, the government argues resentencing is unwarranted. We
disagree and, accordingly, vacate the sentence and remand the case to the district
court for resentencing.




      1
       We grant Barthman’s motion to take judicial notice of his Minnesota state-
court records.

                                         -2-
                                          I.

       Before reaching the merits, the parties dispute whether Barthman preserved his
claim on appeal in the district court. However, whether Barthman preserved his claim
does not affect the outcome of this case. The government does not argue Barthman
has waived, as opposed to forfeited, his claim, which would foreclose appellate
review all together. See United States v. Olano, 507 U.S. 725, 733-34 (1993); United
States v. Mariano, 729 F.3d 874, 880-81 (8th Cir. 2013). The government concedes
that the district court committed procedural error when it increased Barthman’s
criminal-history category by assigning three additional points and that such error was
prejudicial to Barthman because he was given a higher Guidelines range. However,
it argues that, under plain-error review, the error was not “plain” and that even if it
was plain this Court should not exercise its discretion to remedy the error. See
Appellee’s Br. 10-11; see also Olano, 507 U.S. at 734, 736 (describing the second and
fourth prongs of plain-error review). We will assume, without deciding, that
Barthman forfeited his claim on appeal and review for plain error. See, e.g., United
States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014) (“[A] defendant who does not
object to the district court’s miscalculation of his Guidelines range may receive plain
error review.”).

       Plain-error review provides us with “a limited power to correct errors that were
forfeited . . . .” Olano, 507 U.S. at 731. The plain-error test is well established:

      First, there must be an error or defect—some sort of [d]eviation from a
      legal rule—that has not been intentionally relinquished or abandoned,
      i.e., affirmatively waived, by the appellant. Second, the legal error must
      be clear or obvious, rather than subject to reasonable dispute. Third, the
      error must have affected the appellant’s substantial rights, which in the
      ordinary case means he must demonstrate that it affected the outcome of
      the district court proceedings. Fourth and finally, if the above three
      prongs are satisfied, the court of appeals has the discretion to remedy the


                                         -3-
      error—discretion which ought to be exercised only if the error seriously
      affect[s] the fairness, integrity or public reputation of judicial
      proceedings.

Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in
original) (internal quotation marks and citations omitted). Barthman bears the burden
of establishing all four prongs of plain-error review. See, e.g., United States v. Nahia,
437 F.3d 715, 716 (8th Cir. 2006).

                                           II.

       The government concedes the first and third prongs of plain-error
review—error and prejudice, respectively. However, the government argues that,
under the second prong, the error was not “plain” and that, even if the error was plain,
this Court should not exercise its discretion to remedy the error pursuant to the fourth
prong. We address each of the government’s arguments in turn.

                                           A.

       The government argues the district court’s error was not plain because
Barthman “did not identify any flaw with the state statute or its breadth compared to
the relevant federal statute. As a result, the district court was not on notice of
any need to consult the state statute.” Appellee’s Br. 23. In other words, the
government argues the error in this case cannot be plain because Barthman never
brought the error to the district court’s attention. We disagree. The government’s
argument overlooks that plain-error review assumes there was no objection made to
the district court. See Henderson v. United States, 568 U.S. 266, 269, 273-74,
279 (2013).

      Rather, as the government acknowledges, “an error is plain if, at the time of
appellate review, the erroneous nature of the ruling is obvious.” Appellee’s Br. 24

                                          -4-
(citing Henderson, 568 U.S. at 269); see also Johnson v. United States, 520 U.S. 461,
467 (1997) (“[T]he word ‘plain’ is synonymous with clear or, equivalently,
obvious.”) (internal quotation marks omitted). The legal error in this case is obvious
and not “subject to reasonable dispute,” Puckett, 556 U.S. at 135, because, as the
government acknowledges, the Minnesota statutes of conviction are “overbroad and
indivisible.” Appellee’s Br. 24; see also id. at 20-21. The prior convictions are not
“forcible sex offense[s],” as defined in USSG § 4B1.2, comment. (n.1), because they
qualify as such only if the victim was under the age of 12, see 18 U.S.C. § 2241(c),
but the applicable subdivisions of the Minnesota statutes of conviction apply in cases
where the victims are under the age of 13. See Minn. Stat. §§ 609.342-.343. When
a state statute underlying a conviction criminalizes more conduct than the federal
definition of a “crime of violence,” the state conviction does not count. See United
States v. Schneider, 905 F.3d 1088, 1092-93 (8th Cir. 2018). Thus, “a
straightforward application of the guidelines” demonstrates that the district court’s
error is plain. United States v. Blocker, 612 F.3d 413, 416 (5th Cir.
2010) (per curiam), abrogation on other grounds recognized in United States v.
Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016). Accordingly, we may
consider the error despite Barthman not bringing it to the district court’s attention.
See Henderson, 568 U.S. at 269.

                                          B.

       Although Barthman has established that, at the time of our review, the error in
this case is plain, that is not the end of our inquiry; Barthman must also “persuade
[us] that the error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1909 n.4 (2018) (alterations in original) (quoting United States v. Vonn, 535 U.S. 55,
63 (2002)).          This is “a case-specific and fact-intensive” inquiry.
Puckett, 556 U.S. at 142. Although “[t]here may be instances where countervailing
factors satisfy [us] that the fairness, integrity, and public reputation of the

                                          -5-
proceedings will be preserved absent correction,” Rosales-Mireles, 138 S. Ct. at
1909, “[i]n the ordinary case, proof of a plain Guidelines error that affects the
defendant’s substantial rights is sufficient to meet that burden.” Id. at 1909 n.4.
Indeed, “[a] plain Guidelines error that affects a defendant’s substantial rights is
precisely the type of error that ordinarily warrants relief under [plain-error review].”
Id. at 1907.        That is because “in the context of a plain Guidelines
error[,]” id. at 1908, “[t]he risk of unnecessary deprivation of liberty particularly
undermines the fairness, integrity, or public reputation of judicial
proceedings . . . .” Id.

       The single “countervailing factor” suggested by the government is that
Barthman’s federal sentence is concurrent with a longer state sentence, such that the
error in calculating his federal sentence is not reasonably likely to result in any loss
of liberty. Barthman’s concurrent state sentence, however, is not yet final on direct
review. The Minnesota Supreme Court has granted review to consider Barthman’s
challenges to the sentence imposed by the state district court. See State v. Barthman,
No. A17-1191 (Minn. Nov. 27, 2018). At this time, without finality to the Minnesota
proceedings involving Barthman’s concurrent state sentence, it is reasonably likely
that the error in calculating Barthman’s federal sentence could result in him
“spend[ing] more time in prison . . . .” Rosales-Mireles, 138 S. Ct. at 1909-10.
Accordingly, Barthman has established the fourth prong of plain-error review, and
we exercise our discretion to remedy the district court’s error in this case. See
Puckett, 556 U.S. at 135.

                                          III.

      We vacate the sentence and remand for resentencing.




                                          -6-
STRAS, Circuit Judge, concurring in part and concurring in the judgment.

      I agree that we should vacate Barthman’s sentence, and more specifically, that
he has established that it is “reasonably likely” that a calculation error in his federal
sentence will lead to a longer overall stay in prison. Rosales-Mireles v. United States,
138 S. Ct. 1897, 1910 (2018) (discussing and applying the fourth requirement of
plain-error review in the context of an error in calculating a defendant’s advisory
Sentencing Guidelines range). But not for the reason the court suggests.

       What is significant here is that the Minnesota Supreme Court has granted
discretionary review in Barthman’s direct appeal, which occurs in only a small
percentage of cases.2 See State v. Barthman, No. A17-1191 (Minn. Nov. 27, 2018)
(order granting review). If Barthman’s case presents a close call, as many cases
granted discretionary review before a court of last resort do, then it is reasonably
likely that Barthman’s concurrent state sentence may well be vacated or shortened,
meaning that his federal sentence could end up determining how long he spends in
prison.

       Rather than focus on the specific facts of this case, however, the court broadly
pronounces that the litmus test is “finality” under a theory that no one has briefed or
argued. See Puckett v. United States, 556 U.S. 129, 142 (2009) (explaining that the
“fourth prong [of plain-error review] is meant to be applied on a case-specific and
fact-intensive basis” (emphasis added)). It is a strange place to draw the line. Under
Minnesota law, a “court may at any time correct a sentence not authorized by law,”
Minn. R. Crim. P. 27.03, subdiv. 9 (emphasis added), if it was “unauthorized . . . at
the time it was imposed,” State v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015). The
      2
        Recent data shows a grant rate hovering between 10 and 12 percent. See Court
Information Office, Minnesota Supreme Court 2 (2018), available at
http://www.mncourts.gov/mncourtsgov/media/CIOMediaLibrary/DocumentLibrar
y/SupremeCourt.pdf.

                                          -7-
Minnesota Supreme Court has allowed district courts to use this rule to correct a
broad range of errors, even after direct appeal, so finality in this context means little
under Minnesota law. See, e.g., Reynolds v. State, 888 N.W.2d 125, 129–30 (Minn.
2016) (permitting a court to correct a sentence imposed in violation of the Sixth
Amendment); State v. Humes, 581 N.W.2d 317, 321 (Minn. 1998) (upholding the
correction of a sentence to add a term of conditional release).

        In short, the simple fact that Barthman’s state sentence is not yet final tells us
little about whether his shorter, concurrent federal sentence could play a role at some
point. Far more revealing is that the Minnesota Supreme Court has determined that
Barthman’s case, in particular, merits a closer look.
                         ______________________________




                                           -8-
