United States of America v. Joshua Barnes

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0736n.06
No. 11-5551
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA BARNES,
Defendant-Appellant.
______________________________
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
OPINION
Before: SILER and WHITE, Circuit Judges; REEVES, District Judge.*
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Joshua Barnes appeals
his 100-month sentence imposed after he pleaded guilty of conspiracy to distribute and
possess with the intent to distribute oxycodone and marijuana, 21 U.S.C. §§846, 841(a)(1),
(b)(1)(C), & (b)(1)(D); attempt to possess with intent to distribute oxycodone, 21 U.S.C.
§§846, 841(a)(1) & (b)(1)(C); 18 U.S.C. §2; and possession with intent to distribute
marijuana. 21 U.S.C. §841(a)(1) & (b)(1)(D); 18 U.S.C. §2. We AFFIRM.
I.
A. Factual Background
On June 1, 2010, a confidential informant (“CI”) working with Tennessee law
enforcement officials contacted George Joslin to inform him that the CI had a friend – in
The Honorable Danny C. Reeves, United States District Judge for the Eastern*
District of Kentucky, sitting by designation.

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reality an undercover officer – who was trying to sell 500 stolen oxycodone tablets for
$6,000. Joslin told the CI that he had a friend, later revealed as Defendant Barnes, who had
expressed interest in obtaining oxycodone. Barnes had broken his leg in an auto accident and
become addicted to oxycodone.
Joslin contacted Barnes, who, because he did not have the money to buy the pills,
asked co-defendant Kylan Myers if he was interested and could finance the purchase. After
learning the pills were 40-mg tablets, Myers agreed to purchase the pills for $5,000. Myers
soon realized he was unable to procure the entire $5,000, so Barnes contacted Joslin to
determine whether the CI would be willing to accept $4,000 and one pound of marijuana.
The CI told Joslin that the new terms were acceptable.
The next day, June 2, Barnes arrived at Myers’s home, where Myers gave Barnes a
loaded firearm. They drove to Shelbyville, Tennessee, first to a mobile home where they met
the CI and Joslin, and then to a convenience store, where they met the undercover officer,
Agent Childers. Agent Childers showed Barnes and Myers one bottle of the pseudo-
oxycodone pills, which were 80-mg tablets instead of the expected 40-mg tablets, and
allowed them to count the pills. Myers handed the pills to Barnes, who counted them. Agent
Childers testified that although he spoke mostly with Myers and Myers gave him the
marijuana, Myers appeared to be looking to Barnes for approval. Agent Childers also
testified that the two men seemed to be working together.
After Agent Childers gave the take-down signal, police arrested Barnes and Myers.
Barnes did not contribute any of the money or marijuana used to purchase the oxycodone,
and Myers admitted at trial that he was the “main player” in the transaction. Myers had
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agreed to give Barnes a “couple of pills” for his help, but Myers alone was planning to sell
the rest for profit.
B. Procedural History
On June 8, 2010, the grand jury returned a five-count indictment against Barnes and
Myers. Count One jointly charged Myers and Barnes with conspiring to distribute
oxycodone and marijuana. 21 U.S.C. §§846 & 841(a)(1), (b)(1)(c) & (b)(1)(D). Count Two
alleged that they attempted to possess oxycodone with intent to distribute. 21 U.S.C. §§846
& 841(a)(1), (b)(1)(c); 18 U.S.C. §2. Count Three charged them with possession of
marijuana with intent to distribute. 21 U.S.C. §§841(a)(1), (b)(1)(D); 18 U.S.C. §2. Counts
Four and Five charged Myers and Barnes respectively with possessing a firearm in
furtherance of a drug-trafficking crime. 18 U.S.C. § 924(c). On September 1, 2010, the
Magistrate Judge entered an order setting bond, with the condition that Barnes receive
treatment through the Council for Alcohol and Drug Abuse Services (“CADAS”). Barnes
successfully completed the program on October 15, 2010.
On January 25, 2011, Barnes informed the government that he would plead guilty to
the drug charges. Myers pleaded guilty to Counts One and Four and agreed to cooperate with
the government. Barnes contested his guilt on the firearm charge, and after a two-day trial
during which Myers testified against Barnes, the jury acquitted Barnes of the gun charge.
Barnes’s Presentence Investigation Report (“PSR”) described the offense as involving
500 pills, at 80-mg per pill, for a total of 40 grams of oxycodone. The conversion ratio under
the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) for oxycodone to
marijuana resulted in a starting offense level of 26. Applying a two-level increase for
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possessing a gun and a three-level decrease for accepting responsibility, the ending offense
level was 25, which, coupled with Barnes’s criminal history category of V, resulted in a
Guidelines range of 100 to 125 months’ imprisonment.
Barnes filed a motion for a downward departure and a motion for a variance, raising
a series of objections. The district court overruled Barnes’s objections and sentenced him
to 100 months’ imprisonment for Counts 1 and 2 and 60 months’ imprisonment for Count
3, to be served concurrently. Barnes timely appealed his sentence.
II.
This court reviews sentences for reasonableness, which has both procedural and
substantive components. See Gall v. United States, 552 U.S. 38, 46 (2007); see also United
States v.Reilly, 662 F.3d 754, 757 (6th Cir. 2011). Barnes only challenges the procedural
reasonableness of his sentence. A sentence is procedurally unreasonable “if the district court
fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly
erroneous facts, or fails to adequately explain the chosen sentence.” United States v. Baker,
559 F.3d 443, 448 (6th Cir. 2009). We employ an abuse-of-discretion standard of review for
reasonableness, and within-Guidelines sentences raise a rebuttable presumption of
reasonableness. See United States v. Christman, 607 F.3d 1110, 1117 (6th Cir. 2010).
III.
Barnes moved for a downward departure pursuant to U.S.S.G. § 4A1.3(b)(1), which
provides in relevant part, “[i]f reliable information indicates that the defendant’s criminal
history category substantially over-represents the seriousness of the defendant’s criminal
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history or the likelihood that the defendant will commit other crimes, a downward departure
may be warranted.” The district court denied Barnes’s motion. A district court’s decision
not to grant a downward departure is generally grounds to vacate a sentence only if the
district court was not aware of, or did not understand, its discretion to grant the downward
departure. United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (citation and
quotation marks omitted); Reilly, 662 F.3d at 759. Barnes argues the district court erred in
two ways in rejecting his arguments involving his criminal history.
First, Barnes argues the district court erred in refusing to consider his post-offense
rehabilitation efforts – specifically, his successful treatment through CADAS – in deciding
whether to grant a departure. The district court explained that although Barnes’s successful
CADAS treatment was “admirable,” and it could “take note of it,” the treatment nevertheless
“shouldn’t factor in to the calculation of his criminal history, because it doesn’t really fall
within the category of history yet.” Tr. at 38. Barnes argues that this statement shows that
the district court failed to appreciate its authority to consider his CADAS treatment. See
United States v. Hairston, 502 F.3d 378, 384 (6th Cir. 2007) (holding that district court can
take post-offense rehabilitation into account in fashioning a sentence).
The district court’s statement reflects the common-sense conclusion that Barnes’s
CADAS treatment was too recent to shed light on the likelihood that he would recidivate.
The district court stated that it could “take note of” Barnes’s treatment, but ultimately
concluded, “it’s been demonstrated to me by the proof Mr. Barnes is almost certain to
recidivate.” The district court understood that it could consider Barnes’s post-offense
rehabilitation.
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Second, Barnes argues that the district court erred by focusing solely on the
recidivism prong of §4A1.3(b)(1) and effectively ignoring his other ground for departure –
namely, that category V over-represented the seriousness of his prior offenses, which were
minor and mostly related to his inability to complete probation. Barnes highlights that when
he asked the district court about the seriousness of the prior offenses, the district court
responded, “in terms of being indicative of the likelihood to recidivate, I would classify them
as serious.” Barnes thus contends the district court misapplied the Guidelines because
§4A1.3(b)(1) provides two distinct grounds on which to depart: if the criminal history
category substantially over-represents the seriousness of the defendant’s criminal history or
if the criminal history category substantially over-represents the likelihood that the defendant
will commit other crimes. Barnes contends the district court only seriously considered
whether the criminal history category overstated his likelihood to commit other crimes.
Barnes’s argument to the district court relied heavily on his rehabilitation, so the
district court’s emphasis on recidivism is understandable. Beyond this, Barnes points to no
statements implying the district court did not understand its discretion to depart based on the
non-severity of Barnes’s prior criminal conduct. See United States v. Santillana, 540 F.3d
428, 431 (“[W]e presume that the district court understood its discretion, absent clear
evidence to the contrary.”) (citation omitted). As Barnes’s counsel was listing the offenses
and criminal history points, the district court repeatedly pointed out that for most of the
offenses, Barnes did not receive any criminal history points, concluding, “[t]hey’re [sic] just
too many paradoxes in the argument.” Tr. at 36-37. The paradox is that Barnes was arguing
that category V over-represented his criminal history, but the majority of his offenses – 14
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out of 20 – did not receive any criminal-history points. Barnes has not demonstrated that the
district court did not understand or refused to exercise its discretion.
Accordingly, the district court did not commit procedural error in its determination
that Barnes’s category V did not substantially over-represent his criminal history or
likelihood of recividism.
IV.
Barnes next contends the district court failed to adequately respond to certain non-
frivolous arguments. A sentencing judge has an obligation to “set forth enough [of a
statement of reasons] to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decision making authority.”
Rita v. United States, 551 U.S. 338, 356 (2007) (citation omitted); United States v. Brooks,
628 F.3d 791, 796 (6th Cir. 2011). A district court is not, however, required to conduct a
point-by-point discussion, as long as the district court conducted a “meaningful sentencing
hearing and truly consider[ed] the defendant’s arguments.” United States v. Gunter, 620
F.3d 642, 646 (6th Cir. 2010). The district court must adequately “explain[] the basis for
rejecting” a non-frivolous argument. United States v. Lalonde, 509 F.3d 750, 769-70 (6th
Cir. 2007).
Barnes points to two non-frivolous arguments for which he asserts the district court
did not adequately explain its conclusions. First is Barnes’s argument involving the
oxycodone conversion ratio. However, the district court engaged in a lengthy and exhaustive
discussion of Amendment 657, the Amendment through which the Sentencing Commission
altered the oxycodone conversion ratio, as well as the implications of the Supreme Court’s
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decision in Kimbrough. Kimbrough v. United States, 552 U.S. 85 (2007). The thrust of
Barnes’s argument was that Amendment 657 is arbitrary and capricious, specifically its use
of 10-mg as the baseline and insofar as it did not treat other narcotic analgesics similarly.
After recognizing that its discretion was “extraordinarily broad,” Tr. at 41, the district court
rejected Barnes’s argument:
I do find that the guidelines as they relate to Oxycodone are based upon a
rational analysis of the appropriate factors, scientific, sociological, and
otherwise, and, therefore, the Court can be skeptical of them but in this case
finds that they are at least rationally based, and, quite honestly, based upon
all of the evidence in front of me probably, probably as reflective of the
balancing act between scientific and sociological evidence that goes into
these balances as any other drug quantity, any other drug quantity analysis
incorporated in the guidelines, so -- that’s my ruling on that.
Id. at 93. When Barnes asked for more specific findings on this issue, the district court
explained that it did not “accept the argument that all of the drug quantity, all of the drug
quantities standards within the guidelines are arbitrary and capricious.” Id. at 97. Whether
the district court abused its discretion in ruling on the policy underlying Amendment 657 is
a separate question, discussed in more detail below, but the district court obviously
considered the argument and explained its basis for rejecting it.
The second non-frivolous argument Barnes submits the district court did not consider
or adequately explain is his argument that his case is “outside the heartland” of cases the
Guidelines are intended to cover. Barnes asserts he and Myers were marijuana dealers with
no inclination to deal in oxycodone until the reverse-sting operation involved here, and that
they expected the oxycodone tablets to be 40-mg instead of 80-mg. From the outset, the
district court pointed out that this argument was a sentencing entrapment argument, later
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reiterating that it was “having trouble understanding why this isn’t an entrapment argument.”
Id. at 71. The district court explained that Barnes and Myers were marijuana dealers and
that, therefore, “they had the propensity to commit the crime before the state ever introduced
its reverse sting operation into this.” Id. at 85. Barnes’s counsel conceded that sentencing
entrapment requires government misconduct. The transcript shows that the district court
viewed Barnes’s “outside the heartland” argument as a sentencing entrapment argument; that
no government misconduct was involved; and that Barnes had the propensity to engage in
drug deals. Revealingly, Barnes does not argue that the district court was incorrect or
otherwise challenge the underlying bases for the district court’s ruling. Furthermore, as
Barnes concedes, the difference between 40-mg pills and 80-mg pills would not change
Barnes’s base-offense level. Id. at 8-10.
The district court “conducted a meaningful sentencing hearing and truly consider[ed]
the defendant’s arguments,” Gunter, 620 F.3d at 646, but disagreed and adequately explained
the basis for its disagreement. The district court did not commit procedural error on this
ground.
V.
Barnes next contends the district court presumed the reasonableness of the Guidelines
conversion ratio for oxycodone and, relatedly, failed to appreciate its authority to reject the
ratio based on a policy disagreement. See generally Spears v. United States, 555 U.S. 261,
265-66 (2009) (“[D]istrict courts are entitled to reject and vary categorically from the
crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). It is well-
settled that the Guidelines are not mandatory. United States v. Booker, 543 U.S. 220, 266-67
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(2005). Moreover, a district court may reject the Guidelines based solely on a policy
disagreement, even disagreements not involving the crack-to-powder cocaine ratio.
Kimbrough v. United States, 552 U.S. 85, 108-09 (2007); United States v. Herrera-Zuniga,
571 F.3d 568, 584 (6th Cir. 2009). A district court commits procedural error by failing to
recognize its authority to vary from the Guidelines based only on a policy disagreement.
United States v. Guest, 564 F.3d 777, 779-80 (6th Cir. 2009); United States v. Johnson, 553
F.3d 990, 992 (6th Cir. 2009).
Amendment 657 changed the oxycodone-to-marijuana conversion ratio, United States
v. Nassar, 373 F. App’x 564, 565 (6th Cir. 2010), and, according to Barnes, resulted in an
unfair and disproportionate sentencing scheme. Barnes emphasizes that the marijuana-
conversion ratio for other pharmacologically similar drugs was not similarly modified to be
based on the actual amount of the drug involved and that the Sentencing Commission’s use
of 10-mg of oxycodone as the baseline was arbitrary.1
Oxycodone is classified as a narcotic analgesic, along with several other controlled1
substances, such as morphine, codeine, and hydrocodone. Since 1991, controlled substances
are compared to marijuana in determining a sentencing range. U.S.S.G. § 2D1.1 application
n.10 (2010); see also United States v. Lundy, 366 F. App’x 590, 593 n.1 (6th Cir. 2010)
(discussing conversion ratio). Prior to Amendment 657 in 2003, oxycodone was treated
similarly to other strong narcotic analgesics in terms of its conversion ratio to marijuana.
Amendment 657 changed this and sought to correct a disparity due to the amount of
oxycodone contained in different formulations of pills, such as Percocet and Oxycontin.
Oxycontin contains a much higher amount of actual oxycodone than Percocet, but
individuals selling Percocet before Amendment 657 were punished at the same level as
people selling Oxycontin. Amendment 657 changed the baseline to the amount of actual
oxycodone in a pill instead of the total weight of the pill, thereby significantly increasing the
penalty for pills with higher amounts of oxycodone. Amendment 657 did not make such a
change in other narcotic analgesics. See generally United States v. Ekasala, 596 F.3d 74, 75
(1st Cir. 2010). Amendment 657 also used 10-mg as the baseline. See also United States
v. Muza, 232 F. App’x 934 (11th Cir. 2007) (rejecting attempt to apply Amendment 657 to
hydrocodone).
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Barnes points to several statements that, in his view, demonstrate that the district
court did not recognize its authority to vary from, and presumed the reasonableness of, the
Guidelines’ conversion ratio, including the following:
You know, I’ll be honest, I mean, I’m not sure that the Court is enough of
either a chemist or, you know, a biologist or for that matter a sociologist to
determine why the guidelines and really, as I say, I think it’s the federal
government as a whole either through, I guess, the Food and Drug
administration or the Drug Enforcement Administration that come up with
these, you know, classifications of drugs and, you know, in this context, the
criminalization, the criminal punishment that should be applicable. The
Court understands that it’s based upon some sort of balancing, as I said
before, between the beneficial affects [sic]to society or an individual if the
drug is used properly versus the detrimental affects [sic]. I mean, that is what
we got into with the whole crack versus powder cocaine thing. While I
understood sort of the sociological arguments about that, I mean, how am I,
how is a court, individual court here to second guess that sort of thing?
Tr. at 46. The district court made several similar statements expressing a general reluctance
to question the Sentencing Commission’s determination involving Amendment 657.
The district court engaged in a lengthy dialogue with Barnes’s counsel about this
issue, explaining that Barnes’s argument would require every district court in every drug
trafficking case to start from scratch and inquire into the sociological, chemical, biological,
and policy bases for a particular drug-conversion ratio. The district court insisted at various
points that it was not presuming that the conversion ratio was reasonable, id. at 56, 102, and
turned the argument around by asking Barnes’s counsel why some of the other drug-
equivalency tables were not arbitrary and capricious:
But by making that argument, aren’t you then – why are the Hydrocodone
guidelines based upon rational basis, why aren’t they arbitrary and capricious
as well? . . . . [Y]ou’re doing the same thing you’re telling me I can’t do in
the case because you are then assuming that the Hydrocodone guidelines must
be the basis of empirical rational, you know, analysis.
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Id. at 66. The district court concluded that the oxycodone-conversion ratio was “based upon
a rational analysis of the appropriate factors, scientific, sociological, and otherwise,” id. at
93, and that the “Sentencing Commission did engage in a reasoned analysis of the
appropriateness of these particular sets of guidelines and drug quantities.” Id. at 97.
The district court was obviously reluctant to accept Barnes’s argument, but
expressing reluctance is not tantamount to failing to consider the argument or to considering
the oxycodone-conversion ratio sacrosanct. See Brooks, 628 F.3d at 800 (“[T]he fact that a
district court may disagree with a Guideline for policy reasons and may reject the Guidelines
range because of that disagreement does not mean that the court must disagree with that
Guideline or that it must reject the Guidelines range if it disagrees.”) (emphasis added). The
Brooks court explained that forcing a sentencing judge to “‘delve into the history of a
guideline so that he can satisfy himself that the process that produced it was adequate to
produce a good guideline’” would result in “‘unmanageable’” sentencing hearings. Id.
(quoting United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir. 2009)); accord
Eksala, 596 F.3d at 75-76 (“As we held in rejecting a similar argument as to crack/powder
disparity, the mere fact that a sentencing court has the discretion to disagree with the
guidelines on policy grounds, does not mean that it is required to do so.”).
So it is here. Barnes must show more than “mere conjecture that the district court
may have felt constrained by the Guidelines.” Guest, 564 F.3d at 781. The extensive back-
and-forth indicates that the district court grappled with the issue and that it understood its
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discretion. See, e.g., Nassar, 373 F. App’x at 566 (“The extent of argument alone2
undermines the conclusion that the court felt itself bound by the Guidelines.”). The Court
noted that it “was not bound by what they do,” Tr. at 48, and that it could be “skeptical” of
the Guidelines. Id. at 93. The district court fully considered Barnes’s argument, appreciated
its discretion to reject Amendment 657, and chose not to disagree on policy grounds.
Barnes’s challenge fails on this basis, as well.
VI.
Barnes’s final argument is that the district court did not adequately consider the
nature and circumstances of his offense under §3553(a) and relied on clearly erroneous facts
in arriving at a sentence. A district court must impose a sentence sufficient, but not greater
than necessary, to comply with the purposes of sentencing, paying specific attention to seven
factors, including the nature and circumstances of the offense. 18 U.S.C. §3553(a); Gall, 552
at 49. A district court need not engage in a ritualistic incantation of the §3553(a) factors as
long as its explanation permits a meaningful appellate review. United States v. Moon, 513
F.3d 527, 539 (6th Cir. 2008). “[A] court relies on clearly erroneous facts when the
sentencing judge relies upon erroneous information and the information in question appears
to have been an important factor in determining the sentence.” United States v. Cunningham,
669 F.3d 723, 730 (6th Cir. 2012) (citation and quotation marks omitted).
Although the district court never expressly stated that it agreed with the policy2
underlying Amendment 657, it did come close, asking Barnes’s counsel why it would be
inappropriate to “infer” that the 10-mg baseline reflected a reasoned judgment and stating
that Amendment 657's attempt to establish proportionality was admirable.
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Barnes’s basic argument appears to be that once the district court considered his
argument for a minor-role reduction in the context of his earlier motion for a downward
departure, it refused to consider it again in its analysis of the §3553(a) factors, particularly
the nature and circumstances of Barnes’s offense. Earlier in the hearing, Barnes argued that
he was entitled to a downward departure pursuant to U.S.S.G. §3B1.2 based on his role in
the conspiracy, which he portrays as a facilitator or go-between. The district court3
recognized that it would also have to consider Barnes’s role again when it assessed the
§3553(a) factors. Tr. at 27. After hearing testimony from Agent Childers, the district court
rejected Barnes’s §3B1.2 minor-role argument. Barnes cites no authority for the
counterintuitive proposition that a district court cannot rely on its earlier findings and
analysis involving a related issue when it considers the §3553(a) factors later in the
sentencing hearing. Although it is true that Barnes was not to receive more than a few pills
or sell any of the pills, Barnes solicited Myers’s participation in the deal; the deal would not
have occurred but for Barnes; Barnes was present and carrying a firearm at the deal; Barnes
counted the pills; and, according to Agent Childers, Myers appeared to be looking to Barnes
for approval during the transaction. The district court did not abuse its discretion on these
facts.
Barnes’s objection that the district court relied on clearly erroneous facts also misses
the mark. Viewed in context, the district court did not rely on any facts involving additional
conspiracies; instead, the district court was referencing Barnes’s prior drug dealing in
Barnes does not contest, at least explicitly, the district court’s finding that he was not3
entitled to a §3B1.2 minor-role reduction.
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marijuana to dispute Barnes’s point that the two men did not have any predisposition to deal
in oxycodone. The statements about other drug deals were simply a set of potential facts
used as an illustration. Barnes also argued that the district court ignored Myers’s testimony
that he was the main player in the transaction. But finding certain testimony entitled to little
weight is not tantamount to relying on clearly erroneous facts. The district court did not find
Myers’s statements dispositive of whether Barnes’s role was minor. The district court’s
finding that Barnes was not a minor participant was based on, among other things, testimony
that Barnes set up the drug deal, was present at the transaction, and that Myers appeared to
look to Barnes for approval during the transaction. Barnes fails to articulate any facts upon
which the district court actually relied that were clearly erroneous.
The district court considered the nature and circumstances of the offense and did not
rely on clearly erroneous facts. Accordingly, Barnes’s procedural reasonableness challenge
fails.
VII.
For the foregoing reasons, we AFFIRM Barnes’s sentence.
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