United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2090

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota. 

Fernando Rezendis Barrientos, *

*

Appellant. *

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Submitted: December 14, 2011

Filed: March 8, 2012

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Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

FernandoBarrientos pled guilty to possession with intent to distribute 50 grams

or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). At

sentencing, Barrientos sought a two-level reduction in his offense level, claiming he

was eligible for safety-valve relief pursuant to United States Sentencing Commission,

Guidelines Manual, §5C1.2 and 18 U.S.C. § 3553(f)(1)-(5). The district court denied

Barrientos safety-valve relief, relying in error on our prior decision in United States

v. Webb, 218 F.3d 877 (8th Cir. 2000), which has been trumped by Amendment 709

to the Sentencing Guidelines. We reverse Barrientos’s sentence and remand this

matter to the district court for resentencing. 
I.

Under section 5C1.2 and section 3553(f), a defendant convicted under section

841 may be sentenced below the statutory minimum and in accordance with the

applicable Guidelines range if the defendant meets certain criteria, including not

having more than one criminal history point. See USSG §5C1.2; 18 U.S.C. § 3553(f). 

This is known as “safety-valve relief.” See Pepper v. United States, 131 S. Ct. 1229,

1236 n.1 (2011). 

When calculating a defendant’s criminal history, the district court looks to

Guidelines section 4A1.2. Section 4A1.2 instructs district courts to count sentences

for specific, listed misdemeanors and petty offenses “and offenses similar to them”

when the defendant’s prior “sentence was a term of probation of more than one year

or a term of imprisonment of at least thirty days.” USSG §4A1.2(c)(1). The section

also lists offenses that are “never counted,” including “juvenile status offenses and

truancy.” USSG §4A1.2(c)(2). Also, offenses “similar to” those listed are not to be

counted. Id. 

Prior to the enactment of Amendment 709, we adopted an “elements” or

“essential characteristics” test to determine whether two crimes were “similar” for

purposes ofsection 4A1.2(c). See United States v. Borer, 412 F.3d 987, 992 (8th Cir.

2005); Webb, 218 F.3d at 880-81; see also United States v. Mitchell, 941 F.2d 690,

691 (8th Cir. 1991). We found ourselves in good company, as several other circuits

also employed the “elements” or “essential characteristics” approach. See United

States v. Perez de Dios, 237 F.3d 1192, 1198 (10th Cir. 2001); United States v.

Harris, 128 F.3d 850, 854-55 (4th Cir. 1997); United States v. Elmore, 108 F.3d 23,

27 (3d Cir. 1997); United States v. Unger, 915 F.2d 759, 763 (1st Cir. 1990). Other

circuits, however, followed the Fifth Circuit’s multi-factor, “common sense” test to

determine whether two crimes were similar under section 4A1.2(c). See United

States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991); see also United States v.

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Martinez-Santos, 184 F.3d 196, 205-06 (2d Cir. 1999); United States v. Booker, 71

F.3d 685, 689 (7th Cir. 1995). 

Our “essential elements” approach led us in Webb to determine that a prior

Ohio conviction for the offense of “prohibitions,” a crime akin to a minor in

possession of alcohol offense, was not a juvenile status offense or similar to a public

intoxication offense, both crimes that are not counted in a defendant’s criminal

history under section 4A1.2(c)(2). 

Effective November 1, 2007, the Sentencing Commission “resolve[d] [the]

circuit conflict over the manner in which a court should determine whether a nonlisted offense is ‘similar to’ an offense listed at §4A1.2(c)(1) or (2).” USSG App. C,

Amend. 709. In passing Amendment 709, the Commission adopted the FifthCircuit’s

multi-factor, “common sense” approach from Hardeman. Now, the commentary to

section 4A1.2 provides:

In determining whether an unlisted offense issimilar to an offense listed

in subsection (c)(1) or (c)(2), the court should use a common sense

approach that includes consideration of relevant factors such as (i) a

comparison of punishmentsimposed for the listed and unlisted offenses;

(ii) the perceived seriousness of the offense as indicated by the level of

punishment; (iii) the elements of the offense; (iv) the level of culpability

involved; and (v) the degree to which the commission of the offense

indicates a likelihood of recurring criminal conduct.

USSG §4A1.2, comment. (n.12(A)). 

Following the adoption of Amendment 709, Judge Bright warned that our prior

cases concerning the “similar to” question were no longer good law. See United

States v. Leon-Alvarez, 532 F.3d 815, 820-21 (8th Cir. 2008) (Bright, J., concurring)

(“Recently . . . the United States Sentencing Commission . . . adopted Amendment

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709 . . . expressly reject[ing] our ‘elements’ approach in favor of the ‘multi-factor’

approach for determining whether a prior offense is‘similar to’ one ofthe enumerated

offenses in §4A1.2(c). In effect, Amendment 709 clarified the approach courts

should use in determining the ‘similarity’ of offenses for the purposes of §4A1.2(c)

thus trumping our decision in Borer.”). See also United States v. Pando, 545 F.3d

682, 683-84 (8th Cir. 2008) (reiterating Judge Bright’s concurrence in Leon-Alvarez). 

II.

With this background in place, we turn to the case at hand. Barrientos pled

guilty to possessing with intent to distribute 500 grams or more of methamphetamine

in violation of section 841(a)(1), (b)(1)(A). This conviction carries a mandatory

minimum sentence of 10 years unless Barrientos can benefit from the safety-valve

provision of section 3553(f). See 21 U.S.C. § 841(b)(1)(A); 18 U.S.C. § 3553(f). 

Barrientos argued that he was entitled to safety-valve relief. The presentence

investigation report determined that, but for his two criminal history points, he was

eligible for safety-valve relief. He objected to the imposition of the criminal history

point for his prior conviction under Minnesota law at the age of 19 for “Liquor

Consumption by Persons Under 21.” See Minn. Stat. § 340A.503. 

In his objection, Barrientos argued that our decision in United States v.

Johnston, 533 F.3d 972 (8th Cir. 2008), questioned whether our prior decision in

Webb specifically addressed if an adult conviction for being a minor in possession

was “similar to” a juvenile status conviction. Barrientos argued that the appropriate

rule was that adopted by the Sixth Circuit in United States v. Cole, 418 F.3d 592,

599-600 (6th Cir. 2005) (holding that adult conviction for minor-in-possession

offense was “similar to” a juvenile status offense). In response, the government

expended considerable ink in defense of the “essential elements” approach used in

our Webb decision, arguing Webb held an adult conviction for being a minor in

possession of alcohol was not “similar” to a juvenile status offense. Neither party

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alerted the district court to the change in how to address the “similar to” question

after the adoption of Amendment 709. The district court conducted a hearing on 1

Barrientos’s objection. At the hearing, the government strenuously argued that Webb

was controlling, stating, “the precedent is Webb. That’s what we’re talking about. 

That’s what this case is about.” (Hr’g Tr., Doc. 45 at 9.) In ruling on the objection,

the district court expressed considerable frustration that Barrientos would not be

eligible for safety-valve relief, but determined “with due regard for the law that’s

been cited, [the criminal history point] was properly imposed.” (Id. at 15.) 

At sentencing, Barrientos again raised the safety-valve issue “specifically to

preserve and maintain” that issue for appeal. Recognizing Barrientos’s objections,

the court explained it “was bound to follow what [it] understood to be the existing

law” on the safety-valve issue. The government additionally noted that it would

oppose the application of the safety valve because Barrientos had failed to truthfully

provide to the government all information and evidence he had regarding his offense. 

See 18 U.S.C. § 3553(f)(5) (to qualify for safety-valve relief, defendant must

truthfully provide “not later than the time of the sentencing hearing . . . all

information and evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a common scheme or plan”). Barrientos

argued that the presentence report found that he had met this requirement but

suggested that, in light of the court’s prior ruling on the criminal history point, the

issue was moot. The government expressly agreed that the question of whether

Barrientos provided truthful information prior to sentencing was moot in light of the

district court’s ruling on the criminal history point.

The district court imposed a sentence of 121 months imprisonment. 

Barrientos’s plea agreement contained an appeal waiver from any sentence of 120

Indeed, at the hearing, the government informed the district court that it had 1

“cited all the cases possible on this issue.” (Hr’g Tr., Doc. 45 at 9.)

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months or lower. The district court imposed the additional month above the statutory

minimum so that Barrientos could bring this appeal. 

III.

When reviewing the district court’s imposition of a sentence, we review “de

novo the district court’s interpretation and application of the sentencing guidelines

and statutes, and its fact-findings for clear error.” United States v. Resinos, 631 F.3d

886, 887 (8th Cir. 2011) (en banc) (per curiam). An initial question we address is

whether the district court committed a “significant procedural error” when it imposed

the sentence. Gall v. United States, 552 U.S. 38, 51 (2007). The Supreme Court has

held that “failing to calculate (or improperly calculating) the Guidelines” is such a

significant procedural error. Id. This includes the district court’s calculation of

criminal history points. See United States v. Tomac, 567 F.3d 383, 385-87 (8th Cir.

2009). 

A fair reading ofthe hearing transcriptshowsthe district court, at the invitation

of both parties, mistakenly relied upon Webb to determine that Barrientos’s prior

conviction for violating Minnesota’s “Liquor Consumption by Persons Under 21”

was entitled to a criminal history point. Absent from the district court’s

determination of whether Barrientos’s prior sentence warranted the criminal history

point was any discussion of, or reference to, the factors now listed under the

commentary to section 4A1.2. Accordingly, we hold that the district court committed

procedural error in failing to consider the amended section 4A1.2 when it determined

Barrientos’s criminal history points. 

IV.

We reverse the sentence and remand this matter to the district court for

resentencing.

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