United States v. Barrera

In United States v. Barrera, No. 23-50043 (5th Cir. Mar. 6, 2024) (unpublished), the Fifth Circuit affirmed two rulings: (1) the district court’s decision to deny Barrera credit for acceptance of responsibility after he pled guilty and (2) its decision to impose the maximum special assessment.

In the district court, Barrera pled guilty to both receiving and distributing child pornography, and at his rearraignment, he admitted, presumably under oath, that he had both received and distributed the materials through his iPhone.

Later, during his PSR interview, Barrera said that he was ashamed and had a lot of guilt, and he was not strong enough to stop himself; he also said it made him sick to hear his charges read in open court. But when the PSR was released, it did not give Barrera credit for acceptance of responsibility under USSG § 3E1.1, finding that he “did not admit to the conduct comprising the offenses of conviction.”

Barrera filed a motion for leave to re-interview regarding his acceptance of responsibility, but the district court denied that motion. He then objected to the PSR and argued that he met the § 3E1.1 criteria by acknowledging and accepting the elements of his offense, pleading guilty, cooperating with the investigation, and seeking rehabilitation and therapy.

The district court disagreed, finding that “a plea of guilty alone isn’t sufficient for acceptance,” and during his PSR interview, Barrera had only admitted to receipt, not distribution of child pornography. The court emphasized that it did not believe Barrera was untruthful, but it believed he did not admit his criminal conduct.

Ruling 1: The Fifth Circuit affirmed the denial of credit for accepting responsibility. On this issue, the court applies “a standard of review more deferential than the clearly erroneous standard.” United States v. Leontaritis, 977 F.3d 447, 453 (5th Cir. 2020) (quoting United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008)). Under that standard, the district court’s decision denied acceptance because Barrera did not admit the elements of his offense to the PSR writer, and that was enough.

Ruling 2: The Fifth Circuit also affirmed imposition of a $35,000 special assessment. Under the relevant statute, $35,000 is the maximum assessment, but the district court twice referred to that amount as “mandatory.” In his written objections, Barrera had asked the district court not to impose any fine or special assessment "because he is indigent and unable to pay any fines,” but that was insufficient to preserve his appellate argument that the district court mistakenly believed the $35,000 amount was mandatory. Here, the PSR said that Barrera had the ability to pay a “reduced fine,” and the Fifth Circuit found that Barrera failed to satisfy the third or fourth prongs of plain-error review.

Dissent: Judge King dissented from both rulings because “the district court committed errors that should not be overlooked” and Barrera should have received a “fair sentencing process.” Regarding acceptance, “the district court did not have discretion in this case to categorically and arbitrarily turn a blind eye to admissions made as part of the factual basis for a guilty plea, and manufacture a rule that only statements made in a presentence interview can be considered.” Judge King would have also remanded to ensure that the district court considered the appropriate legal standard before ordering the special assessment.