# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 24, 2018

Decided November 13, 2018

Before

WILLIAM J. BAUER, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 18

‐ 1951

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

HECTOR S. BARNES,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:09

‐ cr

‐ 30152

‐ MJR

‐ 1

Michael J. Reagan,

Chief Judge.

O R D E R

On April 1, 2010, defendant

‐ appellant Hector Barnes was convicted of two counts of

distribution of heroin and sentenced to 170 months incarceration followed by a four

‐ year

term of supervised release. Barnes was released from custody on April 20, 2017, and began

the term of supervised release. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1No. 18

‐ 1951 Page 2

On August 28, 2017, Barnes committed battery, violating his conditions of supervised

release. On August 28, 2017, after drinking with a friend, Barnes went to the home of Billie

Simcox, a former romantic partner. When he arrived, he met Simcox’s minor grandchildren

in the home. When Barnes asked the grandchildren where Simcox was, they refused to

tell him. Barnes punched the 13

‐ year

‐ old grandson (“J.S.

‐ 1”); Barnes testified the incident

began playfully but quickly escalated, bringing J.S.

‐ 1 to tears and forcing his 14

‐ year

‐ old

sister (“J.S.

‐ 2”) to intervene—Barnes responded by “choke slam[ing]” her into the television.

Eventually the grandchildren were able to leave the house and call Simcox to alert her to the

situation. A neighbor called the police, but before they arrived, Barnes had left.

On September 11, 2017, the Government filed a petition to revoke Barnes’ supervised

release, pursuant to 18 U.S.C. § 3583(e), in the district court for the Southern District of

Illinois. On September 22, 2017, Barnes made an initial appearance; ultimately the issue was

heard on April 20, 2018. At the revocation hearing, the court heard from: Ms. Simcox, who

testified about her former romantic relationship with Barnes and his entry on her property;

J.S.

‐ 1 who testified about his relationship with Barnes and Barnes’ behavior on August 28,

2017; J.S.

‐ 2 who testified about the events of August 28, 2017; and Barnes who testified about

his recollection of events.

The district court found Barnes did not trespass because he had permission to be in the

house, but did find, by a preponderance of the evidence, that Barnes had committed two

separate batteries against the grandchildren. In its finding of guilt, the district court stated

that it found the grandchildren credible; because they had a credible innocence and their

testimony was consistent. Conversely, the district court found Barnes not credible because

his testimony was inconsistent.

The probation officer’s recommended sentence identified the entire incident as a single

violation of Barnes’ supervised release and recommended a sentence of between 8

‐ to 14

‐

months reincarceration. The district court found this range to be unacceptable given that

two distinct batteries had occurred and sentenced Barnes to 10

‐ months incarceration for the

battery of J.S.

‐ 1 and a consecutive 8

‐ months for the battery of J.S.

‐ 2; a total of 18

‐ months

incarceration. The district court considered the egregiousness of an adult male battering two

young children, the significant criminal history of Barnes—he has a Category 6 criminal

history with 20 criminal history points—his failure to testify truthfully, and the likelihood

that he would recidivate.No. 18

‐ 1951 Page 3

The district court mistakenly believed that Barnes’ remaining 36

‐ months of supervised

release would resume when he completed his reincarceration and declined to impose an

additional term of supervised release. However, the mistake was brought to the judge’s

attention and on April 25, 2018, the district court reconvened to address the issue of

supervised release. The district court judge stated that he intended Barnes to serve the

original term and conditions of supervised release but because they had been revoked by

the prior hearing, they needed to be reimposed. The court then imposed a 36

‐ month term

of supervised release, which included many of the original terms of supervised release, and

a no contact condition regarding the grandchildren.

On appeal, Barnes argues first that the district court improperly imposed the 36

‐ month

term of supervised release because the court mistakenly believed a 36

‐ month term was

mandatory, because the term was not based on 18 U.S.C. § 3553(a) factors, and because the

court failed to consider supervised release in conjunction with the term of incarceration.

These arguments are unpersuasive.

Because Barnes failed to raise the objections at his revocation hearing, the appropriate

standard of review is plain error. United States v. Martin

, 692 F.3d 760, 763 (7th Cir. 2012).

“Accordingly, we will reverse only if we find an error that is plain, that affects the

[appellant’s] substantial rights, and that seriously affects the fairness, integrity or public

reputation of judicial proceedings, effectuating a miscarriage of justice.” Id. at 763–764.

Barnes’ argument that the court mistakenly believed the 36

‐ month term was mandatory

is not supported by the record. During the April 20, 2018, revocation hearing, the court

stated that, because it believed that Barnes would continue to serve the remainder of his

supervised release following his reincarceration, it declined to impose an additional term.

When it became clear that Barnes would not be completing the original balance of his

supervised release, the judge reconvened the hearing and stated: “I had intended to

reimpose the same terms and conditions for the balance of the term that was pending for

Mr. Barnes, but after conversing with probation I realize, of course, by revoking his term of

supervised release I now need to reimpose a term.” The judge then imposed the 36

‐ month

sentence stating that it was the least available to Barnes and the statutory minimum under

21 U.S.C. § 841(b)(1)(C). Moreover, the district court judge explicitly considered various

18 U.S.C. § 3553 factors weighing Barnes’ behavior while on supervised release

and considering the new term in conjunction with the term of reincarceration.No. 18

‐ 1951 Page 4

Second, Barnes argues that the above Guidelines sentence was substantially and

procedurally unreasonable because the testimony of the grandchildren was not credible, his

statements were credible, and the justification for rejecting the original Guidelines range

were unsound.

Looking first to the credibility issues, “[i]t is well settled law that a court of appeals does

not stand in judgment of the credibility of witnesses. Rather that question is left to the sound

discretion of the trier of fact.” United States v. Adamo

, 882 F.2d 1218, 1223 (7th Cir. 1989)

(internal citations and quotations omitted). “[I]f two permissible views exist, the fact

‐

finder’s choice between them cannot be clearly erroneous. The clearly erroneous standard

is especially deferential of a district judge who has conducted a [] hearing, heard the

conflicting testimony, observed the witnesses, and then reached a determination about

whom to believe.” United States v. Huerta

, 239 F.3d 865, 871 (7th Cir. 2001) (internal citations

and quotations omitted).

Here, the district court judge conducted the hearing and heard from the grandchildren

and Barnes. In his ruling he stated that he found the grandchildren’s testimony to be

credible because of their credible innocence and their testimony’s consistency. The district

court judge also stated that he found Barnes’ testimony to be inconsistent because

statements he made during direct examination were contradicted by statements he

made later in his testimony. See United States v. McGee

, 408 F.3d 966, 982 (7th Cir. 2005)

(discussing inconsistent statements in the context of Federal Rule of Evidence 613). Because

there is nothing in the record to suggest any error by the district court, we will not disturb

its findings.

As for Barnes’ suggestion that the district court failed to adequately justify the imposed

sentence, as noted above the district court considered the egregiousness of the two separate

batteries against minor children, Barnes’ significant criminal history, his failure to testify

truthfully, and the likelihood that he will recidivate. The above demonstrates thorough

consideration of relevant factors under 18 U.S.C. §§ 3553(a) and 3583(e).

Accordingly, there is no underlying error that would permit this Court to vacate

appellant’s sentence.

AFFIRMED.