United States Court of Appeals

For the Eighth Circuit 

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No. 23-2583

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United States of America

 Plaintiff - Appellee

v.

Justin Barton

 Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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Submitted: May 24, 2024

Filed: June 3, 2024

[Unpublished]

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Before SMITH, BENTON, and GRASZ, Circuit Judges. 

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PER CURIAM.

Justin Barton appeals after he pled guilty to receipt and distribution of child 

pornography. The district court1 sentenced him within the Guidelines range. His 

counsel has moved for leave to withdraw, and has filed a brief under Anders v. 

1

The Honorable M. Douglas Harpool, United States District Judge for the 

Western District of Missouri.
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California, 386 U.S. 738 (1967), challenging the sentence as substantively 

unreasonable. Barton has filed a supplemental brief, in which he challenges various 

aspects of his conviction; argues that the court improperly considered his prior 

military conviction in sentencing him; argues that the prosecutor engaged in 

prosecutorial misconduct by referring to the military conviction and other facts set 

out in the presentence report (PSR); and argues that his counsel was ineffective. 

Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Upon careful review, this court concludes that the district court did not err in 

imposing the sentence. The record reflects that the district court properly calculated 

the Guidelines range and considered relevant factors, and there is no indication the 

court overlooked a relevant factor, or committed a clear error of judgment in 

weighing the factors. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 

2009) (en banc) (in reviewing sentences, appellate court first ensures no significant 

procedural error occurred, then considers substantive reasonableness of sentence 

under abuse-of-discretion standard; abuse of discretion occurs when court fails to 

consider relevant factor, gives significant weight to improper or irrelevant factor, or 

commits clear error of judgment in weighing relevant factors); United States v. 

Canania, 532 F.3d 764, 773 (8th Cir. 2008) (within-Guidelines sentence is 

presumptively reasonable on appeal). Contrary to Barton’s contention, the court did 

not err by considering his prior military conviction in determining an appropriate 

sentence. See 18 U.S.C. § 3553(a)(1) (court shall consider history and 

characteristics of defendant in determining sentence); United States v. Paz, 411 F.3d 

906, 909 (8th Cir. 2005) (fact of prior conviction is sentencing factor for court to 

consider). 

Further, the prosecutor did not engage in misconduct by referring to the 

military conviction and other undisputed facts set out in the PSR. See United States 

v. Johnson, 695 Fed. Appx. 186, 187 (8th Cir. 2017) (unpublished per curiam) 

(defendant’s argument that government’s assertion of facts from PSR constituted 

prosecutorial misconduct failed because facts were not disputed at time of 

sentencing). As to Barton’s apparent challenges to his conviction, he has waived 
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them by pleading guilty to the offense. See Walker v. United States, 115 F.3d 603, 

604 (8th Cir. 1997) (valid guilty plea waives all non-jurisdictional defects). Finally, 

to the extent Barton argues that his trial or appellate counsel was ineffective, that

issue is better suited for collateral proceedings. See United States v. RamirezJimenez, 907 F.3d 1091, 1094 (8th Cir. 2018) (per curiam) (in most cases, appellate 

counsel will not decide ineffective-assistance claim on direct appeal).

This court has also independently reviewed the record under Penson v. Ohio, 

488 U.S. 75 (1988), and has found no non-frivolous issues for appeal. Accordingly, 

this court grants counsel’s motion to withdraw, and denies Barton’s pending pro se 

motions.

The judgment is affirmed.

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