UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-30030

Plaintiff-Appellee, D.C. No. 9:21-cr-00040- v. DWM-1 JOHN LEE BARLOW, OPINION Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted June 6, 2023 Seattle, Washington

Filed October 4, 2023

Before: Mary M. Schroeder, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Callahan; Partial Concurrence and Partial Dissent by Judge Bea 2 USA V. BARLOW

SUMMARY *

Criminal Law

The panel affirmed a sentence imposed on John Barlow following his guilty plea to possessing a firearm as a felon. The panel rejected Barlow’s argument that the district court’s application of a Sentencing Guidelines enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony violated his Fifth and Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). The panel wrote that the determination of a sentencing enhancement based on a new offense can be made by a judge without a jury and by a standard of proof lower than beyond a reasonable doubt; that there is no mandatory minimum sentence at play and the enhancement still placed Barlow’s Guidelines range within the maximum possible sentence for the offense to which he pled guilty; and that Barlow received all the notice that is required for the enhancement. The panel rejected Barlow’s argument that there was insufficient evidence to support the district court’s finding that he used or possessed a firearm in connection with another felony offense under Montana law for purposes of applying the enhancement. The panel concluded that the district court’s account of the evidence is plausible in light of the record viewed in its entirety.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. BARLOW 3

The panel rejected Barlow’s argument that the district court erred by determining under the modified categorical approach that his prior Georgia conviction for two counts of aggravated assault under O.C.G.A. § 16-5-21(a)(2) qualifies as a “crime of violence” under U.S.S.G. §§ 2K2.1 and 4B1.2. Regarding Barlow’s argument that this court must presume that his conviction rested upon the least of the acts criminalized by the statute, the panel wrote that it need not decide whether a reasonable apprehension form of simple assault constitutes a “crime of violence” because Barlow’s indictment confirms that he committed the assault by “striking [the victim] with said handgun” and “by shooting [the victim] with a handgun,” not by placing him in reasonable apprehension of receiving a violent injury. The panel wrote that the charges as such could only aver an attempted battery form of simple assault under O.C.G.A.0020 16-5-20(a)(1)—that is, he attempted to commit a violent injury to the person of another. The panel therefore held that Barlow’s conviction for aggravated assault necessarily has as an element the use, attempted use, or threatened use plaintiff physical force against the person of another, and qualifies as a “crime of violence” under the elements clause definition in U.S.S.G. § 4B1.2(a)(1). Judge Bea concurred in part, dissented in part, and dissented in the judgment. He agreed that the district court properly found that, for sentencing purposes, Barlow used or possessed a firearm in co